IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Harms, |
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2018 BCSC 1599 |
Date: 20180828
Docket: X080519
Registry: New Westminster
Regina
v.
Daniel Lee Harms
Before: The Honourable Mr. Justice Mayer
Oral Reasons for Sentence
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Counsel for the Crown: |
M.J. Stacey |
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Counsel for the Accused: |
C.S. Johnson, Q.C. |
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Place and Date of Trial/Hearing: |
New Westminster, B.C. August 28, 2018 |
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Place and Date of Judgment: |
New Westminster, B.C. August 28, 2018 |
[1] THE COURT: The defendant, Daniel Lee Harms, is before the court today to be sentenced. Mr. Harms was arrested late in the morning of October 1, 2015, on 108 Avenue in Surrey initially for possession of a stolen vehicle. Mr. Harms' arrest was made by a member of the Surrey RCMP Auto Crime Target Team carrying out a program referred to as Project Hot Wheels. During a search of Mr. Harms and a duffle bag he had been carrying, shotgun shells, a sawed-off shotgun, and licence plates were discovered. Mr. Harms has been found guilty of Count 1 and Counts 2 through 7 inclusive of Indictment Number 80519-2 relating to these activities. One of the counts will be stayed and I will get to that in a moment.
[2] The counts are as follows:
a. Count 1: possession of a stolen motor vehicle with a value of more than $5,000 knowing that the vehicle was obtained by the commission in Canada of an offence punishable by indictment contrary to s. 355(a) of the Criminal Code;
b. Count 2: possession of stolen licence plates of a value not in excess of $5,000 knowing that the licence plates were obtained by the commission in Canada of an offence punishable by indictment contrary to s. 355(b) of the Criminal Code;
c. Count 3: carrying a concealed weapon, a sawed-off shotgun, contrary to s. 90(1) of the Criminal Code;
d. Count 4: possession of a prohibited, restricted, or non-restricted firearm without being the holder of a licence for possession or a registration certificate for the firearm contrary to s. 91(1) of the Criminal Code;
e. Count 5: transporting a firearm, a sawed-off shotgun, in a manner contrary to the Regulations made under paragraph 117(h) of the Firearms Act contrary to s. 86(2) of the Criminal Code;
f. Count 6: possession of an unloaded prohibited or restricted firearm, sawed-off shotgun, together with readily accessible ammunition capable of being discharged in the firearm without being the holder of an authorization or licence under which he may possess the firearm in that place and a registration certificate for the firearm contrary to s. 95(1) of the Criminal Code; and
g. Count 7: possession of a prohibited, restricted, or non-restricted firearm knowing that he was not the holder of a licence for possession or registration certificate for the firearm contrary to s. 92(1) of the Criminal Code.
[3] Mr. Harms was initially arrested on October 1, 2015, as he walked away from a vehicle stolen earlier that morning by his companion, Mr. Dakota Maloy. Mr. Harms knew that the vehicle had been stolen. Mr. Harms had made arrangements with Mr. Maloy to drive him to the home of a drug dealer for the purpose of carrying out a “drug rip”, that is, robbing a drug dealer. Mr. Harms either knew or should have known that this drug rip would involve violence and would involve the use of the shotgun.
[4] When Mr. Harms was searched, the stolen licence plates and the sawed-off shotgun were both found in a duffle bag carried by Mr. Harms and the shotgun shells were found in his pocket. Mr. Malloy and Mr. Harms had taken the licence plates from a vehicle parked on the Scott Road SkyTrain station parking lot. Mr. Harms obtained the shotgun and shells specifically for the purposes of robbing a drug dealer. Mr. Harms has indicated he believed the drug dealer owned a number of weapons himself and lived in a home that was protected by surveillance cameras, in other words, a dangerous location to complete a crime such as this.
[5] Mr. Harms' circumstances have been gleaned by me from a number of sources including the Pre-Sentence Report prepared April 18, 2018; a psychological assessment prepared by Dr. Patrick Bartel, PhD., a registered psychologist, dated August 22, 2018; a number of letters prepared by members of Mr. Harms' family, friends, and co-workers; and from the submissions of counsel during this hearing.
[6] Mr. Harms is currently 42 years old. He was raised primarily by his mother, Jude Harms. Mr. Harms had sporadic contact with his father after his parents separated when he was quite young. In his interviews for preparation of the Pre-Sentence Report, he described his upbringing as 99% good and 1% bad, but it is clear that it was not certainly as good as suggested by that statement.
[7] Mr. Harms reports that his behaviour and adjustment in school and at home worsened, in particular after he was sexually molested by a care worker in his late pre-teen years. Although he had a generally positive relationship with his mother, she struggled with some of her own issues, which included depression, financial and other stresses which resulted on occasion bouts of anger and some abuse directed towards Mr. Harms. As he grew into his teen years, Mr. Harms developed behavioural issues and eventually was not able to succeed in school and was expelled.
[8] At this time, Mr. Harms lives with his mother in Port Coquitlam. Although earlier in his life, his relationship with his mother was at times strained, they have now grown very close. Mrs. Harms has pledged to continue to provide emotional, residential, and financial support to Mr. Harms should he receive a community sentence.
[9] Mr. Harms has four half-siblings, but it does not appear that he has significant contact with them. He has a 23-year-old son, the progeny of a short-term relationship, and I understand his son now lives with his mother in Clearwater, British Columbia.
[10] Mr. Harms has completed a GED, a Graduation Equivalency Diploma while incarcerated for a previous conviction at the Mission Institution. When he was not in custody, and I will address Mr. Harms' custodial history later in my reasons, Mr. Harms worked in various construction and restaurant jobs, none of which appear to have lasted longer than six months. Mr. Harms admits that in the past his drug and alcohol use have interfered with his reliability and work performance. He claims, that he has been clean and sober for two years, at least as of April 1, 2018, and I believe from that date to the current date. Mr. Harms considers himself to be self-employed with a company he started in 2017, Giving Back General Contracting.
[11] With respect to Mr. Harms' court history, it is long and it is significant. It goes back to 1993 and 1994, including convictions for theft and possession of a weapon. In 1995, he was convicted of manslaughter, for which he received a sentence of seven years and a lifetime prohibition from possessing any firearms or ammunition. A series of convictions followed in 2005, 2006, 2013, and 2017 for, in chronological order, robbery, possession of stolen property, breach of parole, and breaches of undertakings on recognizance. In total, Mr. Harms has accrued 13 convictions and has served two federal sentences of seven years and three years, respectively. Over the last 24 years, Mr. Harms has either been in custody or under some form of community supervision for 19 of those years.
[12] It is noteworthy that Mr. Harms received a conditional sentence order for the robbery committed in 2013 with time served and 24 months' probation and a lifetime firearms prohibition. It appears, and it is very unfortunate that I have to say this, that Mr. Harms was unable or unwilling to take advantage of the benefits of the lenient 2013 conditional sentence.
[13] Mr. Harms does not have a positive history of complying with the terms of his current recognizance. There are two relatively minor breaches of his bail conditions, which include missing a curfew and attending at the wrong drug/alcohol treatment meeting. The circumstances surrounding the alleged breakage of one or more ankle bracelets on two occasions were considered to be suspicious. His Pre-Sentence Report indicates that as of April of 2018 he had been compliant with the other terms of his bail order for a couple of months, and I believe that this has been the case from April of 2018 to date.
[14] With respect to the circumstances leading up to his arrest in October of 2015 and the current conviction, Mr. Harms' explanation is that a combination of financial stress, including a desire to financially help his son, and substance abuse, and other medical factors including anxiety and other potential issues, led him to formulate what he now recognizes was a foolish plan to commit a “drug rip”.
[15] Dr. Bartel set out an extensive report which included additional background regarding Mr. Harms which I will not repeat. In most cases Dr. Bartel’s description of Mr. Harms’ background is consistent with other materials that are before the court. Although there are some minor inconsistencies between Mr. Harms' account of the incident leading to the sentencing I am dealing with today, I do not believe they are significant.
[16] Dr. Bartel considers that Mr. Harms suffers from a number of psychological disorders including potentially, although this is not a definitive diagnosis, bipolar disorder. He also indicated in his report that Mr. Harms on occasion appears to suffer from depression, and certainly suffers from anxiety which has been a contributing factor to some of his criminal activity. Dr. Bartel does not consider him to be an inherently antisocial or psychopathic individual.
[17] Dr. Bartel indicated that by most assessment protocols, Mr. Harms presents a high risk for future criminality and points to a number of risk factors including his history of criminality, his history of violence, his history of substance abuse, his criminal history, his past and present associates and his personal and family history which does include some indicia of abuse and trauma. Despite Mr. Harms' recent successes, Dr. Bartel considers that he is still at risk of reoffending, although the risk is lower than it had been in the past. This is not wholly comforting.
[18] With respect to the letters of support provided in support of Mr. Harms' submissions on sentencing, a number of letters were provided. Those include letters from his family, including his mother who I realize is in the courtroom today, and his aunt, as well as a number of friends and work acquaintances, and certificates with respect to training that Mr. Harms has completed while incarcerated on other matters. I have read all of the letters and other materials carefully. The letters, and in particular the letter from Mr. Harms' mother, are in my view heartfelt and sincere. They consistently indicate that Mr. Harms is a good person who makes an effort to help others and that although he has made poor choices in his life, he is now on a better path and therefore should be considered at low risk for reoffending.
[19] Section 718 of the Criminal Code sets out a number of objectives that the court must consider in determining sentence. These objectives include denouncing unlawful conduct, and for the benefit of the people in the gallery, that is telling the world at large that this type of conduct is wrong and that society does not accept it.
[20] Second, a sentence should deter the offender and other persons from committing similar offences. There are two elements to that. One is a sentence which includes a period of incarceration to make the offender think twice before committing further crimes after release and the other, is to deter others from committing similar offences.
[21] Third, a sentence should consider the benefit of separating the offender from society where necessary to prevent further harm to members of the public; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders and involves an acknowledgement of the harm done to victims and to the community.
[22] As established in R. v. Voong, 2013 BCCA 527 denunciation and deterrence are at the foremost of the consideration the court must consider in determining sentence.
[23] Section 718.1 of the Criminal Code states that the fundamental principle of sentencing is that the sentence be proportionate to the gravity of the offence.
[24] I am also guided by the principles set out in 718.2 of the Criminal Code. An important one is that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I bear in mind the other important principles of sentencing, which are that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of Aboriginal offenders, which does not apply in this case in terms of Mr. Harms' cultural background.
[25] Finally, in determining the sentence, I am able to take into account any time spent in custody pursuant to s. 719(3) of the Criminal Code. In this respect, I understand Mr. Harms has spent a total of 12 months in custody since he was first arrested which, after applying the multiplier of 1.5 to one for time served, results in a total credit of 18 months.
[26] The Crown submits that the following sentence is appropriate: on Count 1, which is related to theft of the vehicle, nine months; on Count 2, which is related to theft of the licence plates, three months; on Count 4, that charge is to be judicially stayed pursuant to the principles set out in Kienapple; on Count 6, the most serious of the firearms offences, the Crown is proposing a sentence of five to six years; and with respect to the remaining counts, Counts 3, 5, and 7, Crown is proposing sentences of six months, six months, and two years respectively, all served concurrent to Count 6.
[27] The Crown submits that Counts 1 and 2 would run consecutively to each other and to Counts 3, 5, 6, and 7. By my calculation, this would result in a total sentence of between six and seven years. After deducting 18 months for time served, this would result in new time of between 4.5 and 5.5 years.
[28] The Defence submits that in the circumstances the following sentence would be appropriate: with respect to Count 1, three months; with respect to Count 2, one month; with respect to Count 3, six months; Count 4 is to be stayed; with respect to Count 5, six months; with respect to Count 6, three years; and with respect to Count 7, 12 months. There is no disagreement with respect to which sentences should be concurrent or consecutive.
[29] By my calculation, the defence proposal would result in total new time of 22 months. This, the defence submits, would result in incarceration in a provincial facility and would be followed by a lengthy period of probation if the court provides for a sentence in that range.
[30] With respect to the ancillary orders the Crown and Defence agree that a DNA order should be made pursuant to s. 487.04 of the Criminal Code, and for a lifetime firearms prohibition pursuant to ss. 109(1)(d) and 109(3) which I note is mandatory in these circumstances.
[31] Both the Crown and Defence agree that it is appropriate to consider the following as aggravating factors in determining sentence: Mr. Harms was on probation for the February 2013 robbery at the time of the October 2015 offence; Mr. Harms was subject to two lifetime firearm prohibitions at the time of the offence; Mr. Harms had a serious criminal record which included convictions for violence, including manslaughter and two robberies; Mr. Harms admitted to obtaining and then possessing the shotgun for the purpose of robbing a drug dealer, which was an inherently dangerous and risky endeavour that had the potential to harm innocent members of the public; Mr. Harms possessed the firearm in a moving vehicle, and then later on the street expanding the circumference of risk; and the shotgun was readily accessible and was not locked or secured.
[32] The Crown does not consider that there are any mitigating factors in this case justifying a lower sentence. The Defence contends that some mitigating factors exist related to Mr. Harms' personal history including the incident of childhood sexual abuse and its impact on his future life, his medical condition including depression, anxiety and potential bipolar disorder, trauma related to his prior incarcerations and his history of substance abuse.
[33] The Defence says that Mr. Harms' post-arrest conduct demonstrates that he is now on the right path. This includes his establishment of Giving Back Construction, a company in which he has employed a number of people with a criminal past or who have had issues with respect to substance abuse, an approximate two-year period of sobriety and finally, only minor breaches of what are described by his counsel as very strict bail conditions.
[34] The Crown relies on a number of cases in support of its argument that a custodial sentence of five to six years is appropriate for the most significant offence, being the s. 95 firearm offence, including the following: R. v. Huard, R. v. Holt, R. v. Walsh, and R. v. Racette. The Defence referred to two additional decisions of this court, R. v. C., and R. v. Poony, mainly for the proposition that Mr. Harms' extended period of release on strict bail conditions, which I believe is two years less the time he spent in jail for breach of bail conditions, should be taken into consideration in determining sentence. In other words, there should be some potential offset for the period of time that he has been under those conditions.
[35] With respect to the mitigating circumstances, I have considered as mitigating factors Mr. Harms' personal pre-offence circumstances as summarized by his counsel. In particular I have considered Mr. Harms' conduct while he has been out on bail. It appears that he has improved his behaviour and that he has the love and support of his mother and of his friends. Unfortunately, balanced against that are the incidences of breach of his bail conditions and the suspicious damage to, or loss of, his electronic monitoring devices, which is troubling.
[36] Also, in my view, Mr. Harms' explanation for why he planned to steal a car, buy a shotgun, and committing what was going to likely be a violent “drug rip”, which was to obtain money to help his adult son, does not ring with sincerity. It appears that Mr. Harms never left his life of crime and that the plan to commit the “drug rip” was simply an escalation of his recent criminal activity and a manifestation of his desire to obtain money by robbing someone who he considered to be a justifiable target.
[37] With respect to the aggravating factors, I consider that the list of aggravating factors set out by the Crown and accepted by the defence are appropriate. I would add that it is truly fortunate that the RCMP were able to stop Mr. Harms from proceeding with his plan to commit a robbery using the sawed-off shotgun. It is only as a result of good police work by members of the Project Hot Wheels team that the stolen vehicle was quickly identified and Mr. Maloy and Mr. Harms were arrested before they attended at the home of a drug dealer to complete the robbery. Mr. Harms admitted that he intended to use the shotgun to carry out a “drug rip” of a drug dealer that he knew possessed a number of weapons. I am not aware of any evidence that indicates that Mr. Harms had made any preparation to conceal his identity before he attended at the home of a drug dealer to carry out the “drug rip”. Therefore, and although I am not making a finding in this respect, an inference can be drawn in those circumstances that Mr. Harms knew the “drug rip” would be violent and intended to do harm in order to complete it.
[38] I have considered the argument of counsel for the Defence that the sentence proposed by the Crown with respect to theft of the vehicle and licence plates should be reduced to three months for Count 1 and one month for Count 2 as opposed to the nine and three months proposed by the Crown. I disagree with counsel for the Defence. Although these are separate charges and may seem, if viewed in isolation, as relatively minor it is important to consider as an aggravating factor the reason for theft of the vehicle and licence plates. This was done to obtain a vehicle and disguise its identity for the purpose of carrying out a violent robbery.
[39] Accordingly, I consider that the Crown's recommended sentence for those charges and for the remaining firearms charges are appropriate.
[40] With respect to the Defence request that Mr. Harms’ strict bail conditions be taken into account in determining sentence, I do not consider that the bail conditions imposed on Mr. Harms were overly strict. They were for the most part typical bail conditions including primarily the requirement to remain with his mother, to attend Narcotics Anonymous and Alcoholics Anonymous meetings, to respect a curfew and to wear an electronic monitoring device. I note that Mr. Harms was not compliant with his bail conditions and that it appears that he attempted to disrupt his electronic monitoring devices. That said, I have still considered the period under which Mr. Harms was under bail conditions after his release in determining the appropriate length of sentence.
[41] Mr. Harms, could you please stand.
[42] Considering the factors discussed in the decisions set out by the Crown and Defence and taking into consideration all the factors referred to in these reasons, with emphasis on the need for denunciation and deterrence, I sentence you as follows: for Count 1, I sentence you to a period of incarceration of nine months consecutive to all other counts; for Count 2, I sentence you to incarceration for three months consecutive to all other counts; for Count 3, I sentence you to incarceration for six months concurrent to Count 6; there will be a stay of Count 4; for Count 5, I sentence you to incarceration for six months concurrent to Count 6; for Count 6, I sentence you to incarceration for five years; for Count 7, I sentence you to incarceration for two years concurrent to Count 6. There will be a credit of 18 months for time served based on a 12-month period of incarceration multiplied by 1.5.
[43] Further, the ancillary orders sought by the Crown and consented to by the defence are so ordered. These are my reasons for sentence.
[44] Mr. Stacey, first of all, any questions from you?
[45] MR. STACEY: No, thank you, My Lord.
[46] THE COURT: All right. Mr. Johnson?
[47] MR. JOHNSON: Just to clarify, My Lord, with respect to Count 6, the sentence imposed is five years, and you are indicating that 18 months will be deducted from that?
[48] THE COURT: Correct.
“Mayer J.”