Regina v SMC, 2014 BCPC 144 (CanLII)
Citation: Regina v SMC Date: 20140620
2014 BCPC 0144 File No: 88057-5-C
Registry: Port Coquitlam
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
SMC
ORAL REASONS FOR SENTENCE
OF THE
HONOURABLE JUDGE G.N. SMITH
Counsel for the Crown: J. Fogel
Counsel for the Defendant: A. Kaario
Place of Hearing: Port Coquitlam, B.C.
Date of Hearing: June 20, 2014
Date of Judgment: June 20, 2014
INTRODUCTION
[1] After trial on August 8, 2013, I found SMC guilty on all five counts for Port Coquitlam information 88057-5C:
Count 1: s.384(1)(b) - breaking and entering a dwelling and committing the indictable offence therein of aggravated assault
Count 2: s.267(a) - assault with a weapon, being a weighted sock weapon
Count 3: s.88(1) - carrying or having in her possession a weapon, being a knife, for a purpose dangerous to the public peace or for the purpose of committing an offence
Count 4: s.88(1) - carrying or having in her possession a weapon, being a weighted sock weapon, for a purpose dangerous to the public peace or for the purpose of committing an offence
Count 5: s.344(1)(b) - stealing a cellular telephone from Rui Soares and at the time of stealing also wounding Rui Sores
I stayed Count 4 because the crown relied on the same evidence to establish Counts 2 and 4.
[2] A Pre-sentence Report and a Gladue Report were prepared for SMC's sentencing.
[3] The crown is seeking a period of incarceration between five and seven years and ancillary orders. SMC’s defence counsel suggested that an appropriate sentence for SMC would be a term of imprisonment ranging between three to three and a half years plus time in custody before sentencing. The maximum sentence is imprisonment for life on Counts 1 and 5. The maximum sentence for Counts 2 and 3 is 10 years imprisonment. There is no minimum sentence for any of the offences. A conditional sentence is unavailable for Counts 1 and 5, in accordance with s.742.1(c) of the Criminal Code.
FACTS
[4] The facts are as follows: On April 18, 2012, Mr. Soares moved from the residence shared by SMC and CB. Mr. Soares moved to an apartment residence located in Coquitlam, BC. He knew both SMC and CB for approximately two months before he moved from their residence. Circumstances between Mr. Soares and SMC were acrimonious before and during Mr. Soares’s relocation from SMC’s residence.
[5] During the morning of April 18, 2012, SMC, CB and SMC’s brother TC attended at the patio door of Mr. Soares’s apartment. Mr. Soares was in his apartment’s kitchen and saw SMC and TC enter Mr. Soares’s apartment through Mr. Soares’s patio door. Mr. Soares did not invite SMC or TC into Mr. Soares’s apartment. SMC and TC each had a weighted sock. SMC and TC each tried to hit Mr. Soares with their weighted sock. Mr. Soares tried to get away from SMC and backed up in the apartment through the kitchen into a hallway of his apartment. SMC approached Mr. Soares into the kitchen, grabbed a knife out of the kitchen sink, threw a box at Mr. Soares and stabbed Mr. Soares in Mr. Soares’s abdomen with the knife. Mr. Soares moved toward the hallway door to access the hallway to get away from SMC. The hallway door was locked, and Mr. Soares went back into the kitchen. SMC followed Mr. Soares toward the hallway door and used the knife to stab Mr. Soares in Mr. Soares’s right forearm as Mr. Soares was trying to protect himself by raising his right forearm toward SMC. Mr. Soares saw SMC take Mr. Soares’s cell phone from Mr. Soares’s kitchen table. Mr. Soares saw “them” (I am not sure who “them” were at this point), but Mr. Soares saw “them” cut the cord to Mr. Soares’s television, and SMC and TC left Mr. Soares’s apartment. Someone called the police to attend at Mr. Soares’s apartment.
[6] Mr. Soares was treated at a hospital, which included surgery for his colon that was punctured when SMC stabbed Mr. Soares in the abdomen. From photographs entered as exhibits during the trial, Mr. Soares identified the knife used by SMC to stab Mr. Soares, as well Mr. Soares’s cell phone that SMC took from Mr. Soares’s apartment before she left his apartment.
[7] During cross-examination, Mr. Soares denied cutting SMC on SMC’s forearm.
[8] Cst. Vellani attended at Mr. Soares’s apartment, took photographs of the scene including Mr. Soares’s apparent wounds and assisted police with a police dog to locate and seize a knife and cell phone that was found in two pieces, all of which were located outside and near Mr. Soares’s apartment.
[9] I found SMC to be a non-credible witness. I found her testimony to be unreliable, evasive, often inconsistent, and unrealistic, and provided five examples. I will not review those examples today, as I provided them in my reasons for finding SMC guilty.
[10] I found that SMC did not defend herself in any way on April 18, 2012, so had no self-defence as a defence to the charges.
[11] I also found that SMC was not heavily intoxicated on the date of the offence, and was not too intoxicated to form an intent to break and enter and assault Mr. Soares. SMC testified that she consumed three beer before and while walking to Mr. Soares’s apartment. Further, SMC admitted to stabbing Mr. Soares after she entered Mr. Soares’s apartment. As a result, I found that self-intoxication did not provide a defence for SMC.
DECISION AT TRIAL
[12] At trial, applying R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, I found SMC to be not credible as a witness, and I rejected her testimony for being unreliable, contradictory, inconsistent and unbelievable. I found Mr. Soares to be credible and his testimony to be reliable.
[13] I was convinced beyond a reasonable doubt by Mr. Soares’s evidence that SMC was guilty of all counts, convicted her of each of those counts and as I mentioned previously, stayed count 4, because counts 2 and 4 were made up of substantially the same elements.
THE OFFENDER
[14] SMC is 48 years of age and was born in Edmonton, Alberta. She is Cree, descending from the James Smith Cree Nation in Saskatchewan.
[15] A Pre-sentence Report and a Gladue Report were prepared for sentencing SMC.
[16] Her history is tragic. From the ages of 5 through to 11, she was severely physically abused by her mother. Her father was non-existent. Alcohol and drug abuse were prevalent in her home, as was violence. By age 11, SMC was abusing drugs and was apprehended by child protection services. By the age of 13, she was living in Vancouver’s downtown east side, using drugs, experiencing violence and engaging in criminal activity to support her drug addiction. In childhood and as an adult, SMC was sexually assaulted on multiple occasions. Her relationships with men included SMC being physically abused.
[17] She has two sons, and has been in a common-law relationship for the past 20 years. SMC and her common-law spouse are very supportive of each other in the community. SMC’s common-law spouse is willing to wait for SMC to finish serving her sentences for these offences. SMC was in receipt of financial assistance from the Persons with Disabilities program before she was detained for this offence.
[18] SMC stated that she has been diagnosed with drug induced schizophrenia, bipolar disorder and lives with depression. As noted in the Pre-sentence Report, SMC requires anti-psychotic medication. She advises that she has been on methadone as well. When SMC takes her medications, she does not engage in criminal activity.
[19] SMC completed her grade 8 requirements. She hopes to live a life free from alcohol and drugs, complete grade 12, and train to become an addictions counsellor. While detained for the current offences that are before this court, SMC successfully completed the Substance Abuse Management program and the Essential Skills to Success Healthy Relationships Unit 1 program entitled, “The Impact of Family Violence.”
GLADUE CONSIDERATIONS
[20] SMC remained connected to the James Smith Cree Nation through her grandparents until SMC was 10 years of age. Also in adulthood, SMC participated in traditional activities such as Powwows and attending community gatherings. She has attended a First Nations treatment centre. She has also attended a medicine sweat in Little Pine First Nations in Saskatchewan. During incarceration, she has attended the Native Brotherhood, connected with the Native Liaison Workers in the prisons and has participated in sweats.
[21] SMC’s mother, maternal aunts and uncles and grandparents attended residential schools. It is likely that SMC’s paternal relatives also attended residential schools. The effect of them suffering physical, mental, emotional, spiritual and sexual abuse had residual effects on SMC including SMC being physically, mentally and emotionally abused from a very young age by her mother, observing violence among family members, being sexually assaulted during her youth and in her adult years, engaging in domestic relationships where violence was common, her development of addiction to alcohol and drugs, engaging in criminal behaviour to support her addictions and engaging in violence in the community.
[22] SMC is willing to address factors that contributed to her criminal behaviour, including attending intensive residential treatment programming, attending Alcoholics Anonymous and Narcotics Anonymous and engaging with a sponsor, working with counsellors to develop and maintain a relapse prevention plan and working with a psychologist to address past issues of grief, trauma and abuse. She is eligible for the Indian Residential Schools Resolution Health Support Program as a child of a residential school survivor, and SMC is willing to reconnect with First Nations cultural activities and ceremony, acknowledging her Cree identity.
CRIMINAL RECORD
[23] Her criminal record is extensive. As of April 18, 2012 when the offences occurred (which are the subject matters of this sentencing), SMC was convicted 66 times between 1983 and 2008. Of the 66 convictions, 26 were for property offences and 14 were for breaching conditions. Between the ages of 22 to 31, SMC was convicted 4 times for assault and one time for assault with a weapon. The assault convictions occurred in 1990, 1991, 1995 and 1997 for which SMC received jail sentences of 1 day, 15 days, 30 days and 40 days, respectively. She was convicted for assault with a weapon in 1992, for which she received a sentence of 12 months jail. Also, SMC was convicted 13 times for failing to appear, one time for escaping lawful custody and one time for being unlawfully at large.
CROWN COUNSEL’S SUBMISSIONS
[24] The crown submitted that I must consider the Gladue factors, and that 5 to 7 years jail minus time served is a fit sentence for SMC. The sentencing principle s.718.2(e) of the Criminal Code that refers to community based sentencing does not apply to SMC because she is to be sentenced to imprisonment for more than 2 years, and so will not be eligible for a community based sentence. The Supreme Court of Canada has not expressed that the total sentence needs to be different or lowered for Gladue factors when an offender is not being considered for a community based sentence. Ipeelee did not change what Gladue said. There is no reason to discount the sentence for SMC, considering her Gladue factors. At no point has the crown suggested that Gladue factors should not be considered - actually the sole mitigating factors for me to consider as the sentencing judge, are the Gladue factors for SMC.
[25] Paragraph 75 of R. v. Ipeelee sets out the analysis that I must engage in; the sentencing has to consider the mitigating role of SMC’s history:
[75] “Section 718.2(e) (of the Criminal Code) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has been, and continues to be, the fundamental duty of a sentencing judge. Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section 718.2(e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process.”
[26] Further, the crown submitted that defence counsel provided no cases to support his sentencing range, and defence counsel's sentencing recommendation of 3 to 3.5 years imprisonment does not reflect deterrence and denunciation. The crown submits that SMC’s offences before this court for sentencing are extremely serious:
a) Exhibit 2 at trial showed Mr. Soares's stab wounds - he said he needed surgery and required approximately three months to recover. Crown submits that there is no need for the crown to substantiate the victim’s claims for recovery time.
b) Three armed people entered Mr. Soares’s home.
c) Inside Mr. Soares’s residence, SMC committed assault causing bodily harm and with a weapon against Mr. Soares.
[27] Crown submitted cases that set out a sentencing range that is much higher than requested by the crown for SMC. Her history is tragic, so the crown considered SMC’s history when recommending a sentencing range for SMC. The crown submitted that if SMC was not Aboriginal, the crown would be seeking a sentence of 8 to 10 years imprisonment for SMC in accordance with the cases submitted by the crown:
a) In R. v. Moore, 2008 BCCA 1966, the BC Court of Appeal upheld a global sentence of 8 years imprisonment for an offender convicted of Robbery, Break and Enter of a Dwelling and Committing Assault (for which the offender received six years imprisonment at trial), Uttering Threats to Cause Death or Bodily Harm (the offender received 2 years less a day imprisonment), Suffocating a Person to Enable an Offence of Theft (a one year imprisonment sentence was imposed) and Possession of a Prohibited Weapon (for which 3 months imprisonment was imposed at trial). The offences were violent, and the offender was Métis.
b) In R. v. Hockley, 2013 BCSC 113 (CanLII), both offenders were each sentenced to 90 days jail to be served intermittently plus probation for one year. The break in to the victim’s home was considered to be serious, but was not considered to be a home invasion because the offenders broke into the victim’s residence to collect a debt, rather than to commit other offences. The offenders caused cuts to the victim.
c) In R. v. Nepinak, 2011 BCSC 80 (CanLII), the offender was sentenced to 2 years and 8 months imprisonment plus credit on a 2:1 basis for time served in custody pre-sentencing, which was from November 28, 2008 until January 24, 2011. The overall sentence was 7 years of imprisonment (3 years imprisonment for one offence plus 4 years imprisonment for the second offence to be served consecutively). The offender Nepinak broke into two different residences, threatening the occupants and committing robberies in those dwellings. The offender was Aboriginal and had a significant criminal record for property offences, Breaking and Entering, drug offences and breaches of court Orders.
d) In R. v. Morgan and Bamberry, 2013 BCPC 99 (CanLII), the offenders were sentenced to 7 years and 6 years imprisonment, respectively, for Breaking and Entering into a Dwelling House and Robbing its Occupants, for Unlawful Confinement, Having their Faces Masked with the Intent to Commit an Indictable Offence, and Assault with a Weapon being Morgan’s Crowbar and Bamberry’s Pepper Spray. Bamberry was Aboriginal, for whom a Gladue Report was prepared and considered.
[28] The crown submitted that the following aggravating factors to be considered for SMC are:
a) Mr. Soares was occupying his dwelling at the time of commission of the offence and SMC used violence against Mr. Soares while committing the offence as reflected in Count 1, which is breaking and entering a dwelling and committing the indictable offence therein of aggravated assault.
b) SMC has a long criminal record, including five previous assault convictions, one of which was with a weapon.
[29] The crown submits that the mitigating factors to be considered for SMC are:
a) SMC’s Aboriginal heritage; and
b) the hardships that she suffered while growing up.
DEFENCE COUNSEL’S SUBMISSIONS
[30] Defence counsel submitted that I focus particularly on the sentencing principle of rehabilitation and the principle set out in s. 718.2(e) of the Criminal Code, commonly referred to as the Gladue principle. Defence counsel submits that specific and general deterrence and rehabilitation will be satisfied by a sentence of incarceration for SMC of 3 to 3.5 years plus enhanced credit for time that SMC has served in custody before sentencing. Defence counsel agrees that an Order for taking a sample of SMC’s DNA is appropriate, as is a firearms prohibition Order for life.
[31] He asks that I give little weight to SMC’s previous assault convictions because they are very dated. The only indictable offences that SMC was convicted of were drug offences, not offences of violence.
[32] Defence counsel submitted that the mitigating factors for SMC are:
1) Her history, her family’s history and the direct and significant impacts that her family members’ experiences at residential schools had on SMC, as described in SMC’s Gladue Report prepared for her sentencing.
2) Further, family bonds are very important to SMC. For example, she has made arrangements for her grandchildren to visit her wherever she is incarcerated.
3) Also, her mother is very supportive of SMC now, and wrote a letter in support of SMC for SMC’s sentencing.
[33] The case authorities provided by defence counsel are R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688 and R. v. Ipeelee, 2012 SCC 13.
OFFENDER’S RIGHT TO SPEAK AT SENTENCING HEARING
[34] SMC provided submissions during her sentencing hearing.
[35] SMC grew up with violence. Her Gladue Report reflects that SMC grew up with a lot of violence - that is all she has seen. SMC is 48 years old, and has to stop the cycle somehow.
[36] She wants to do things differently now. She wants to complete her 12 steps. Her educational goal is to achieve her grade 12, wants to study addictions counselling, is upgrading now, and wants to counsel youths between 10 years of age and 16 years of age. For work, she is a painter with her brother. She loves painting, and has worked with her brother for the past four years. She does renovating, including in stores taking down shelves, and so forth.
[37] She is currently on step 3 with Alcoholics Anonymous, coming to realize that she is an addict. She took the Substance Abuse Management program and has learned a lot about herself. If she knew then what she has learned now, SMC would not be here in court.
[38] She is very sorry. If she had a chance to talk to Mr. Soares, she would say that she is sorry. At the hospital, she apologized to him and SMC could not remember the incident.
ANALYSIS
[39] For imposing sentence for SMC, I have taken into consideration the sentencing objectives and principles set out in sections 718 through 718.2 of the Criminal Code, which include the Gladue principle referred to in s.718.2(e) of the Criminal Code; the cases provided by counsel, all their written and oral submissions and documents provided by them; SMC’s Pre-sentence Report and Gladue Report; testimony from CB in SMC’s support; the letter from SMC’s mother in support of SMC; and SMC’s statement provided to me in court, along with her letter to me dated May 5, 2014.
[40] I also take into consideration her First Nations heritage and impacts on SMC resulting from her family members’ experiences at residential schools as described in SMC’s Gladue Report, as well as her history and the recommendations set out in the Pre-sentence Report and in her Gladue Report. As SMC requested during our last sitting, I also take into consideration SMC’s wish that she has expressed for the past several months, which was to have her sentencing concluded as soon as possible because she spent several months in custody while waiting for her sentence to be imposed.
[41] In R. v. L.M., 2008 SCC 31 at paragraph 17, LeBel J for the majority, summarized these principles and objectives as follows:
“Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’s competence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s.718.1 Cr. C.). To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative procedures set out by Parliament in the Criminal Code:
- the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (s.718 Cr. C.) …;
- the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s.718.1 Cr. C.); and
- the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr. C.).”
[42] The aggravating circumstances are:
1) Mr. Soares was occupying his dwelling at the time of commission of the offence and SMC used violence against Mr. Soares while committing the offence reflected in Count 1, which is breaking and entering a dwelling and committing the indictable offence therein of aggravated assault.
2) Mr. Soares suffered a stab wound to his abdomen and arm, which required surgery and a period of recovery for his physical wounds. No doubt, he would have been traumatized by these events.
3) SMC has a long criminal record, including five previous assault convictions, one of which was with a weapon.
[43] The mitigating circumstances are:
1) SMC is very remorseful, and as she stated in court, would apologize to Mr. Soares if she had a chance to talk to him. She submitted during her sentencing hearing that she apologized to Mr. Soares at the hospital soon after she committed the offences, though SMC submits that she could not remember the incident.
2) Her life circumstances are truly tragic. SMC’s mother, maternal aunts and uncles and grandparents attended residential schools. It is likely that SMC’s paternal relatives also attended residential schools. The effect of them suffering physical, mental, emotional, spiritual and sexual abuse had residual effects on SMC including SMC being physically, mentally and emotionally abused from a very young age by her mother, observing violence among family members, being sexually assaulted during her youth and in her adult years, engaging in domestic relationships where violence was common, her development of addiction to alcohol and drugs, engaging in criminal behaviour to support her addictions and engaging in violence in the community.
3) SMC is willing to address factors that contributed to her criminal behaviour, including:
a) attending intensive residential treatment programming;
b) attending Alcoholics Anonymous and Narcotics Anonymous and engaging with a sponsor;
c) working with counsellors to develop and maintain a relapse prevention plan; and
d) working with a psychologist to address past issues of grief, trauma and abuse.
4) She is eligible for the Indian Residential Schools Resolution Health Support Program as a child of a residential school survivor, and SMC is willing to reconnect with First Nations cultural activities and ceremony, acknowledging her Cree identity.
5) SMC’s spouse and mother are both supportive of SMC.
6) Since being arrested for failing to appear for her sentencing hearing and being detained as a result, SMC has been in custody for a lengthy period of 145 days including today. I take as mitigating for SMC’s sentencing, that she has appeared in court in custody on numerous occasions since her arrest, hoping to finalize her sentencing process, and anticipating being transferred from a remand facility to a federal penitentiary where she will have access to additional services and opportunities. I understand that the numerous delays to finalize her sentencing are no fault of her own.
OFFENDER’S APPLICATION FOR ENHANCED CREDIT FOR PRE-SENTENCE CUSTODY
[44] SMC has applied for enhanced credit for the time she spent in custody before her sentence hearing today. Defence counsel for SMC submitted that SMC should be granted credit at 1.5 to 1 for the time she spent in custody from May 3, 2012 until she perfected her bail on May 15, 2012.
[45] Crown submitted that SMC should not be eligible for enhanced credit for the time she was in custody after having been detained for this information on January 28, 2014, in accordance with s. 719(3.1) of the Criminal Code.
[46] SMC was detained on January 28, 2014 after being arrested for failing to appear for her sentencing hearing that was scheduled on January 24, 2014. She was detained under ss.524(4) and (8) of the Criminal Code because of her 13 previous convictions that appear in her Criminal Record for Failing to Appear. She was also detained because she was no longer presumed innocent, having been found guilty after trial for all counts of Port Coquitlam information 88057-5C, for which she is to be sentenced today.
[47] Recently in R. v. Summers, 2014 SCC 26, the Supreme Court of Canada clarified when an offender should be granted enhanced credit for time served in custody before sentencing. At paragraphs 70 and 71, Karakatsanis J. wrote:
[70] In determining credit for pre-sentence custody, judges may credit at most 1.5 days for every day served where circumstances warrant. While there is now a statutory maximum, the analytical approach endorsed in Wust (R. v. Wust, 2000 SCC 18) otherwise remains unchanged. Judges should continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres.
[71] The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely. Of course, a lower rate may be appropriate when detention was a result of the offender’s bad conduct, or the offender is likely to obtain neither early release nor parole. When the statutory exceptions within s.719(3.1) are engaged, credit may only be given at a rate of 1 to 1. Moreover, s.719 is engaged only where the pre-sentence detention is a result of the offence for which the offender is being sentenced.
[48] Applying R. v. Summers and s.719(3.1) of the Criminal Code, I grant SMC enhanced credit of 1.5 days for each of the 13 days that she spent in custody from her initial arrest for these charges on May 3, 2012 until she perfected her bail on May 15, 2012. This is calculated as 1.5 X 13 which equals 19.5 and is rounded up to 20 days for which SMC is credited. For the 144 days that SMC has spent in custody since her latest arrest on January 27, 2014 to yesterday, June 19, 2014, credit may only be given at a rate of 1 to 1 because the circumstances of her detention fall within a statutory exception contained in s.719(3.1) of the Criminal Code. Specifically, SMC was detained because she has 13 convictions appearing in her Criminal Record for failing to appear, and she failed to appear for her sentencing hearing on January 24, 2014 after having been convicted after trial for all counts in the information for which she is before this court for sentencing. As a result, I am granting SMC 144 day’s credit for the time she has spent in custody from her arrest on January 27, 2014 to yesterday, June 19, 2014. Therefore the total credit then that I am granting SMC for pre-sentence custody is 20 + 144 days equalling 164 days credit.
SENTENCE
[49] To satisfy the sentencing principles set out in sections 718 through 718.2 of the Criminal Code, including specific and general deterrence, denunciation, rehabilitation for SMC, and taking into consideration of course, SMC’s First Nations heritage and history in accordance with Gladue and Ipeelee, as well, also taking into consideration the time credited to SMC of 164 days for time served in custody pre-sentencing, I sentence you SMC to a total of four additional years of imprisonment.
[50] The sentences for these four offences are to be served concurrently and are as follows:
Count 1: s.384(1)(b) - breaking and entering a dwelling and committing the indictable offence therein of aggravated assault
Sentence: time credited of 164 days for time served in custody pre-sentence plus 4 years of imprisonment.
Count 2: s.267(a) - assault with a weapon, being a weighted sock weapon
Sentence: 1 year of imprisonment (to be served concurrently);
Count 3: s.88(1) - carrying or having in her possession a weapon, being a knife, for a purpose dangerous to the public peace or for the purpose of committing an offence
Sentence: 60 days of imprisonment (to be served concurrently); and
Count 5: s. 344(1)(b) - stealing a cellular telephone from Rui Soares and at the time of stealing also wounding Rui Soares
Sentence: 180 days of imprisonment (to be served concurrently).
[51] I also impose additional Orders:
1) the mandatory DNA Order under s. 487.051(1) on Count 1, 2 and 5 because they are primary designated DNA offences;
2) the mandatory firearm prohibition Order for life under s.109 of the Criminal Code for Count 1; and
3) I will waive the Victim Fine Surcharge because of SMC being sentenced to serve a significant term of imprisonment and because of her limited financial means to pay this surcharge.
[52] Madame Registrar, when this Order has been posted on the Provincial Court’s website, I ask that steps be taken to ensure that it is delivered to the Correctional Service of Canada for reasons that the Correctional Service of Canada requires it, including planning for SMC’s treatment, education, rehabilitation and so forth.
The Honourable Judge G.N. Smith
Provincial Court of British Columbia