IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  On August 22nd of 2014, I convicted James McDonald following a trial, on the offence that on April 9th, 2014 at Surrey, British Columbia, he did break and enter a residential premise on 72nd Avenue with intent to commit an indictable offence therein, contrary to s. 348(1)(a) of the Criminal Code. 

[2]           Mr. McDonald is before the court today to be sentenced.  The imposition of sentence has been delayed in order to ensure that Mr. McDonald's mental health circumstances have been fully canvassed.  A Pre-Sentence Report was initially ordered with a psychological assessment.  Mr. McDonald changed counsel in the process, and a subsequent application was then made by his current counsel, Ms. Percival, to have him assessed under s. 672.1(1) (b) of the Criminal Code to determine if he was suffering a mental disorder that would exempt him from criminal responsibility.  That assessment was carried out and Dr. Kolchak reported, on December 16th, 2014, that in his opinion Mr. McDonald did not qualify for a defence under s. 16(1) of the Criminal Code.  That issue was not pursued further.  Dr. Kolchak further concluded that Mr. McDonald was not certifiable under the Mental Health Act. 

[3]           The sentencing was then reset to today's date.  Submissions were heard from Crown counsel and Ms. Percival on an earlier date and they concluded this morning.

[4]           The evidence at trial was set out and analyzed at the time of the conviction.  Briefly, the circumstances are the following.  On April 9th of 2014 at about 3:00 p.m., an 11-year-old child was alone in the family residence.  She heard knocking at the front door.  A male, who I found to be Mr. McDonald, was at the door and said that he was the mailman.  The child did not open the door.  Mr. McDonald kicked in a side panel window by the door and was able to gain entry to the residence.  The child ran out the backdoor of the residence to a neighbour's home and called 9-1-1. 

[5]           The neighbour went to the residence.  He saw a male moving about inside the residence.  He knocked on a window.  Several minutes later, the male person inside the residence came out.  That person spoke briefly with the neighbour, and the neighbour took a photograph of that person with his phone as the male person walked away.  That photograph was evidence at the trial.

[6]           Police attended and apprehended Mr. McDonald not far away and shortly after the events.  Mr. McDonald gave evidence on his trial.  He admitted that he was the person in the photograph, but he denied being in the home.  The witness identified Mr. McDonald as the person that he had photographed and who he had seen come out of the home.

[7]           Property in the living room of that residence had been moved about.  Mr. McDonald's fingerprint was found on a television that had been moved.  I concluded the Crown's case was very strong.  I disbelieved Mr. McDonald's evidence that he had not entered the residence.

[8]           The Crown seeks a sentence of imprisonment in the four-to-five-year range, reflecting deterrence, both general and specific, and protection of the public, considering Mr. McDonald's criminal background, personal circumstances and a lack of insight, which impacts negatively on his prospects for rehabilitation.

[9]           Ms. Percival says that although Mr. McDonald does not have a defence that he is not criminally responsible, he nevertheless has significant mental health issues which explain his conduct and his lack of insight.  She says that a fit sentence is three years, less time served, allowing the sentence to be served provincially, with treatment and recovery options available both in custody and on a subsequent probation order in the community.

[10]        Both counsel agree that Mr. McDonald is entitled to credit for pre-sentence custody at an enhanced 1.5 factor.

[11]        Mr. McDonald is 38 years of age.  He has been in custody since his arrest on the day of this offence.  His early years were difficult.  His parents' relationship was unstable.  He spent time in foster care and on the street from about the age of 12.  He reports being physically [text removed for publication] abused at that age.  He was in a lengthy common-law relationship and he is the father of three children.  That common-law relationship no longer continues. 

[12]        Mr. McDonald was diagnosed ADHD.  He developed substance abuse addiction in his early years.  There is some uncertainty as to what level of schooling he completed.  He has some work history, which appears to have been somewhat sporadic and interrupted by the effects of his addiction and his criminal conduct.

[13]        Mr. McDonald's criminal record is lengthy.  He has, by my count, 14 prior adult convictions for break and enter on the JUSTIN summary list that has been filed.  The Pre-Sentence Report appears to me to indicate perhaps other convictions, but he certainly has at least the 14 adult convictions for break and enter that I have referred to.  They extend relatively consistently from 1995 through to 2009, and then this break and enter which I am to sentence him on today, occurring in 2014. 

[14]        Mr. McDonald has served jail sentences up to an effective 20-month sentence and including three conditional sentence orders in respect to these break and enter offences.  In addition, his adult record includes two assault convictions, at least, numerous property convictions, an escape conviction and four breach convictions.

[15]        Mr. McDonald was on a probation order following an assault conviction at the time of this offence.  That order was imposed, from what I can determine in the record, just nine days earlier.  He was sentenced five days prior to the offence before me for breaching that very probation order, apparently on the day that it was imposed.

[16]        This record is consistent with longstanding abuse of substances which, in Mr. McDonald's case, has included cocaine, methamphetamine and heroin.  He also consumes alcohol and had done so on the day of this offence.  Mr. McDonald has, he says, hepatitis C.  He has been using heroin since the age of 23.  He has attended Maple Ridge and King Haven treatment programs in the past.  He completed the King Haven program in 2002, but he went AWOL from the Maple Ridge program in 2005 and was breached.

[17]        Mr. McDonald's mental health circumstances are important in the consideration of an appropriate sentence.  Crown counsel, Ms. Elliott, says that although there are mental health issues, Mr. McDonald has done little to address those issues, to the point that he is now a significant risk to the public.  He has demonstrated no insight into his offending, has not or cannot assume responsibility for his actions, and therefore his prospects for rehabilitation are low.  So long as that continues, he continues to be a risk to re-offend.

[18]        Ms. Percival says that Mr. McDonald's poor mental health is precisely why he is incapable of taking responsibility and it must be his mental health that sentencing here should focus on, allowing him to take advantage of the Guthrie Program through the Provincial Corrections while in custody.  I will note that an e-mail from a drug and alcohol counsellor at the Surrey Pre-Trial Centre respecting that program and its availability to Mr. McDonald was provided to me during the sentencing process.

[19]        Dr. Kolchak's report on December 16th, 2014 sets out Mr. McDonald's current psychiatric circumstances.  He has been hearing voices for the past two years.  This began in the context of his drug use at that time and it continues.  Mr. McDonald denies command-type hallucinations.  The voices have caused him, however, to believe that someone is setting him up or discrediting him.  It appears the voices occur more generally than just during drug use.  He has been examined on several occasions at hospital emergency facilities due to this condition and his bizarre behaviour, those attendances occurring in 2013 and up to as recently as March of 2014.  He was consuming drugs and alcohol heavily through that period.  He has been on medication in the past which has provided some relief, but it appears that he has not been consistent in taking medication and would not initially take medication during the remand for assessment.  However, it appears that he did take some medication, at least, as the assessment period proceeded.  It is unclear whether he has continued to do so.  I believe I am correct in saying, from Ms. Percival, that he is not on medication currently.  Am I right? 

[20]        THE COURT:  Mr. McDonald is just informing me through his counsel that in fact he is currently taking three medications at this time, and while on remand.

[21]        I take it from Dr. Kolchak's report that medication did not significantly improve the psychotic symptoms during the assessment period, but did reduce Mr. McDonald's anxiety.

[22]        Dr. Kolchak diagnosed Mr. McDonald in the following terms on page 7 of his report.  At paragraphs 45 and 46, he stated this:

[23]        The doctor's conclusions at page 8, in part, are as follows, and this is from paragraph 52, items numbered 1 through 4.

[24]        Dr. Stangeland conducted the court-ordered psychological assessment of Mr. McDonald.  His report dated September 25, 2014 identified a variety of factors as relevant to assessing Mr. McDonald's risk to reoffend.  They included the following; previous violence, relationship instability, employment issues, substance use, major mental illness, psychopathy features, early maladjustment, personality disorder, prior supervision failure, lack of insight, impulsivity, unresponsive to treatment, lack of personal support and stress.  At the same time, Dr. Stangeland concluded that Mr. McDonald is of average intelligence.  He appeared receptive to treatment, although it appears to me this is qualified somewhat in terms of the medication that he might take, and I qualify that statement somewhat, based on the information he has just provided. 

[25]        His risk for future violence was assessed as at least moderate, but high for general criminality.  These risks can be reduced through treatment of the psychiatric illness, drug and alcohol treatment and abstinence, and by supportive case management. 

[26]        There is no doubt as to the seriousness of this offence.  Break and enter of dwellings carries a maximum sentence of life imprisonment.  The Court of Appeal in this province put that in context in a case called R. v. Arsenault in 1999.  Mr. Justice Essen stated the following at paragraph 7:

[27]        Here, the offence was committed in broad daylight, in a brazen manner, and precisely the concern for safety of the public, which explains why this offence is treated so seriously, is present here.  A young child was alone in the house.  She was traumatized by the events.  Although in time victims may put these events behind them and reacquire a sense of personal security and sanctuary in their own home, that is not always the case. 

[28]        Ms. Elliott, Crown counsel, has provided several cases supportive of the four-to-five-year range which is proposed.  In addressing the balancing of sentencing objectives in the case of an experienced and persistent offender, the Court of Appeal stated the following in a case called R. v. Falconer, at paragraphs 8 and 9.  This is Mr. Justice Donald of the Court of Appeal speaking:

[29]        In a similar vein, the following is taken from the case of R. v. T.D.G., which is a Court of Appeal decision in this province in 2006.  At paragraphs 18 and 19 of the court's judgment, Madam Justice Ryan stated:

[30]        In R. v. Alexander 1998 BCJ 1814, the Court of Appeal upheld a five-year sentence in respect of a 30-year-old offender with numerous property offences and a heroin addiction.  The offence involved planning and premeditation.  R. v. Hagen 2009 BCCA 283, in the Court of Appeal, and R. v. Crittenden 2010 BCPC 348, a decision of Judge Caryer of this court in 2010, are to similar effect. 

[31]        Clearly, the nature of the crime, the dominating sentencing objectives of deterrence, generally and specifically, in relation to Mr. McDonald, and protection of the public, his past criminal history and his failure over the years to address in a committed way his addiction issues justify consideration of a sentence in the four-to-five year range, as the Crown proposes. 

[32]        The issue presented by the defence here is whether Mr. McDonald's mental health circumstances set him apart from cases where such sentences have been imposed or upheld in the past, and justify a tempering of that range to reflect his apparently impaired ability to acquire insight into his conduct and thereby move towards rehabilitation and ultimately his safe reintegration into the community, which could be achieved through concentrated efforts at the provincial institution to address that outcome.

[33]        Sentencing must account for Mr. McDonald's moral blameworthiness, but jail, when imposed, must be no longer than required to address relevant sentencing objectives in the particular circumstances of this offence and this offender.  I can say that despite his past history, I would not be inclined towards the upper end of the Crown's range.  The issue then is whether a federal sentence of four years or thereabouts, less time served, is called for over a federal sentence of three years or thereabouts, which, with time served consideration, would provide access to the Guthrie House Program and provide for close supervision in the community on a probation order thereafter. 

[34]        I have concluded that the sentencing issues surrounding Mr. McDonald set him somewhat apart from those described in the cases in which the four-to-five-year range has been applied.  Although not an excuse, his mental health issues, in my view, help to understand why it is that he does not take the full and compelling responsibility for his conduct that one would otherwise expect, particularly in the face of a very strong Crown case.

[35]        His personal deterrence, and ultimately protection of the public in these circumstances, in my view, is best served through continuing efforts to address his addiction issues and his underlying mental health issues, which, at least in part, flow from that.  The provincial program through the Guthrie House facilities, as recommended by the counsellor at the Pre-Trial Centre, in my opinion, offers such an option.  The reports filed lead me to conclude a federal sentence, accounting for pre-sentence custody but permitting that program and later control in the community on probation, offers the best balancing of factors here.  I note Mr. McDonald has not served a sentence of this length in the past.

[36]        I have concluded that at the enhanced rate for pre-trial sentence calculation, he has 14-and-one-half months of pre-sentence custody credit available to him.  Both counsel agree that the enhanced credit should apply in this case.

[37]        I conclude that an appropriate sentence in these circumstances would be three years imprisonment.  With credit granted, Mr. McDonald, I impose an additional 21 months and 14 days imprisonment.

[38]        There will be a probation order thereafter for a period of three years. 

[39]        The conditions will be the following: that you keep the peace and be of good behaviour; that you report forthwith upon your release to a probation officer at the address to be provided, and thereafter as directed by the probation officer; that you reside where directed by the probation officer, which may include a residential treatment program if so directed by the probation officer, and you must not change that residence without the prior written approval of the probation officer.

[40]        You must attend, participate in and complete to the satisfaction of the probation officer any assessment, treatment or counselling that may be directed by the probation officer.  You must attend the forensic psychiatric clinic if so directed by the probation officer.

[41]        I am going to direct that you be bound by a curfew.  In my view, a curfew is relevant here and should be included, because despite the fact that this offence occurred during daytime hours, your conduct in the community, based on your past criminal history and challenges, really requires that there be some control over your whereabouts into the nighttime hours.  You will be bound by a curfew.  You must not be outside of your place of residence between nine o'clock in the evening and six o'clock in the morning seven days a week, unless you have the prior written approval of the probation officer, in which case you must have that with you and produce it on request of a peace officer or probation officer, or in the event of a medical emergency involving yourself or a member of your immediate family.

[42]        You must attend the door of your residence, or by telephone, if requested to do so by a peace officer or probation officer in order to confirm compliance with any condition of this order.

[43]        You must not attend within 200 metres of [text removed for publication], Surrey, British Columbia.  You must not attend at any place of residence, school or employment of the complainant, whose name, Ms. Elliott, I am going to ask you to provide in a moment, or any member of her family that you know of or learn of while this order is in effect.  You are to have no contact, directly or indirectly, with that individual or any member of her family.

[44]        You must abstain from the possession or consumption of alcohol or non-prescription drugs or substances controlled under the Controlled Drugs and Substances Act, unless you have a medical prescription or a dental prescription for such substances.

[45]        You are not to have in your possession any tool or instrument capable of being used to break into any premise or vehicle. 

[46]        You must carry a copy of this order with you when away from your residence, and produce it on request of a peace officer or probation officer.

[47]        There is also a recommendation that a Rogers order be included in any community supervision order, and I am going to include those provisions.  They will be reviewed with you again at a point in the future.

[48]        You will take reasonable steps to maintain yourself in such condition that your physical and mental health will not likely cause you to conduct yourself in a manner dangerous to yourself or anyone else, and it is not likely that you will commit further offences.

[49]        You will attend as directed from time to time at a medical office or forensic clinic for the purpose of receiving such medical counselling and treatment as may be recommended, except that you shall not be required to submit to any treatment or medication to which you do not consent.  If you do not consent to the form of medical treatment or medication which is prescribed or recommended, you shall forthwith report to your probation officer and thereafter report daily to the probation officer.

[50]        You shall provide your treating physician with a copy of this order and the name, address and telephone number of your probation officer.  You shall instruct your treating physician that if you fail to take medication as prescribed by him or her, or fail to keep any appointment made with him or her, he or she is to advise your probation officer immediately of any such failure.

[51]        In a moment I will ask counsel whether there are any other conditions that I should impose in that probation order, but I will direct that you provide a sample of your DNA to the National DNA Databank on the basis that this is a primary designated offence.

[52]        In addition, there will be a firearms prohibition order under s. 110 for a period of ten years.

[53]        The surcharge is due and payable forthwith, and in default, one day concurrent.  

[54]        MS. ELLIOTT:  Your Honour asked for the name of the girl who was home.  It's G.D.  In addition, the neighbour who was a witness in these proceedings, his name was B.S., and the Crown would also be asking for a no-contact order with him. 

[55]        THE COURT:  Included with the probation order will be a no-contact order.  You are to have no contact, directly or indirectly, with B.S. or any member of his family.

[56]        It seems to me it would be appropriate that the reports that have been filed here be made available to the probation officer and to the drug and alcohol counsellor within the facilities.