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R. v. Last and Hornby, 2015 BCPC 63 (CanLII)

Date:
2015-03-25
File number:
35145 - 1
Citation:
R. v. Last and Hornby, 2015 BCPC 63 (CanLII), <https://canlii.ca/t/ggwxv>, retrieved on 2024-03-29

Citation:      R. v. Last and Hornby                                               Date:           20150325

2015 BCPC 0063                                                                          File No:               35145 - 1

                                                                                                        Registry:      Prince George

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

REGINA

 

 

v.

 

 

GEOFFEREY JOHN LAST

and CHRIS ANDREW HORNBY

 

 

 

 

 

 

REASONS FOR SENTENCE

RE: SENTENCING OF GEOFFEREY JOHN LAST

OF THE

HONOURABLE REGIONAL ADMINISTRATIVE

JUDGE M. J. BRECKNELL

 

 

 

 

 

Counsel for the Crown:                                                                                          S. Mengering

Counsel for the Defendant:                                                                                            M. Houg

Place of Hearing:                                                                                         Prince George, B.C.

Date of Hearing:                                                                                            December 18, 2014

Date of Judgment:                                                                                               March 25, 2015


INTRODUCTION

 

[1]           The Defendant, Geofferey John Last, who pleaded guilty on November 20, 2013 to Count 2 of Information 35145, assault with a weapon, to wit a bat and a taser, on R. S. on October 10, 2011, is to be sentenced today.

[2]           Mr. Last is the co-accused on the Information with Chris Andrew Hornby who waited until to December 18, 2014 to apply to withdraw his earlier entered guilty plea.  Therefore, any reference in these reasons to what Mr. Last or Mr. Hornby did on October 10, 2011 remains only allegations as they pertain to Mr. Hornby.

[3]           The Crown seeks a sentence for Mr. Last of between two to three years in a federal penitentiary or, in the alternative, if a sentence of less than two years in a provincial prison is imposed, a Probation Order to follow his term of incarceration.  In addition, the Crown seeks a lifetime firearms prohibition and a DNA Order.

[4]         The Defence originally sought a Conditional Sentence Order of two years less a day with a period of house arrest and curfew.  However, when it was confirmed that a Conditional Sentence Order was not available due to the nature of the offence Defence counsel proposed a variety of different sentences including a Probation Order and perhaps a short period of incarceration.  Defence counsel made no submissions on the issues of the firearms prohibition and the DNA Order.

OFFENCE CIRCUMSTANCES

[5]           At the time surrounding the date of the offence Mr. Last and Mr. Hornby were engaged in a drug culture based criminal lifestyle.  Some people who knew them at the time believed they were members of a local criminal gang.

[6]           On the day of the offence the Complainant, Mr. S., his brother and a woman friend of Mr. S.’s were at his residence.  The woman departed and was later followed by Mr. S. and his brother to another location where Mr. S. had a physical altercation with a third-party known to him and the woman.

[7]           After the altercation between Mr. S. and the third-party concluded the third-party called Mr. Hornby (who brought along Mr. Last) to his residence.  The third-party alleged that Mr. S. had attempted to beat him with a hammer and he instructed Mr. Hornby and Mr. Last to attend at Mr. S.’s residence to teach him a lesson.  Mr. Last obtained a baseball bat and Mr. Hornby procured a taser before they departed.

[8]           Mr. Last and Mr. Hornby went to Mr. S.’s apartment.  They covered the peep hole and banged on the door until Mr. S. opened it.  Mr. Last hit Mr. S. with the baseball bat with an overhand swing and struck him several other times about the head and arms.  Mr. Hornby tasered Mr. S. and punched him in the stomach.

[9]           Although they were not charged with any offences against Mr. S.’s brother, it is alleged that he was also assaulted and told by Mr. Last and Mr. Hornby not to mess with the third-party or he would be a dead man.

[10]        As Mr. Last and Mr. Hornby were finishing their assault on Mr. S. the third-party arrived at the residence with the woman and she called 911.  Mr. Last and Mr. Hornby departed.  The baseball bat and the taser were never recovered.

[11]        In November 2011, Mr. Last reported his truck stolen to ICBC.  That matter was referred to the RCMP who determined that Mr. Last was subject to arrest.  He turned himself in to the RCMP on January 20, 2012.

VICTIM’S INJURIES

[12]        As a result of the assault upon him Mr. S. required treatment at the emergency ward of the University Hospital of Northern British Columbia.

[13]        The attending doctor noted a number of significant blows to the head and neck including contusions and hematoma some of which required stitches.  There were no fractures to the jaw, neck or thorax.

[14]        The doctor expressed concern about one of the large hematoma and open laceration to Mr. S.’s head opining that it was inflicted with considerable force and was “a potential life-threatening injury”.

[15]      Mr. S. was discharged after approximately six hours at the emergency ward but required several further medical follow-ups as a result of persisting pain and other related symptoms.

DEFENDANT’S CIRCUMSTASNCES

[16]        Mr. Last is 29 years old.  His parents separated when he was an infant and he was raised by his mother in Kelowna until he was 16 years old, at which time he moved to Prince George to reside with his father until he graduated from high school in 2003. While in high school Mr. Last was an average student in academic subjects but excelled in vocational courses.

[17]         During his younger years Mr. Last was reported to be a restless child and not very social.  His mother noted that he was bullied during elementary school and seemed more interested in mechanical things than playing with other children.  He was diagnosed with Attention Deficit Hyperactivity Disorder and received prescription medication and naturopathic treatment until his teenage years.

[18]        Mr. Last has dealt with mental health issues since his teenage years.  He attempted suicide on three occasions and was hospitalized for several days on two of them.  He was diagnosed with depression in January 2012 and is currently under the treatment of a doctor and receiving antidepressant prescription medication.

[19]        Subsequent to graduating from high school, Mr. Last moved among several communities in British Columbia and Alberta eventually returning to Prince George in 2009.  From 2009 until 2012, Mr. Last was engaged in a variety of criminal activities with a group who supported themselves through illegal means.  He was at the lower level of that social group.

[20]        As part of the terms of his release from custody on this matter Mr. Last was required to live in Kelowna.  At first he resided with his mother and step-father and in the fall of 2013 he obtained his own residence.  Mr. Last has re-established social relationships with old friends from Kelowna, one of whom describes his behaviour since his return in 2012 as extremely positive, particularly as it relates to his interest in his employment and their common positive social activities.

[21]        Since his return to Kelowna Mr. Last has obtained full-time employment with an automotive repair company where he is training as an apprentice.  His work with that business is interspersed with classroom training which he takes at Okanagan College. He hopes to eventually receive his Red Seal certificate.

[22]        Mr. Last was a marijuana abuser for approximately eight years but does not have any abuse issues with other drugs or alcohol.  He has abstained from marijuana use since being released on bail in January 2012 and was in contact with an addictions counsellor at Kelowna Mental Health and Substance Use for many months but is now ceased those meetings.

DEFENDANT’S CRIMINAL RECORD

[23]        Mr. Last has a limited criminal record.  In 2005 in Kelowna he was fined for driving while prohibited.

[24]        In February 2011, before the events before the Court, he committed an assault in Kelowna for which he received a conditional discharge and probation when sentenced in September 2012.

[25]        In December 2011, after the events before the Court, he was arrested for firearms possession and storage offences for which he received a ten year firearms prohibition and an 18 month Conditional Sentence Order.  He successfully served that sentence and attended programs as directed by his Supervisor.

[26]        During the time he has been on bail with regard to this offence, Mr. Last was noted by his Bail Supervisor to be fully compliant with his bail terms.

PRESENTENCE REPORT

[27]        The Pre-Sentence Report set out much of the information which is described elsewhere in this decision.  Under the heading Summary and Proposed Interventions the author of the report states:

A significant amount of time has elapsed since the offence occurred and Geofferey appears to have taken and maintain the appropriate measures to mitigate those factors that presented as risks to reoffend. Those include negative peer group, substance use, lack of employment and residential instability.

 

DEFENDANT’S ATTITUDE

[28]        In the Pre-Sentence Report, Mr. Last expressed remorse for his actions that resulted in Mr. S.’s injuries acknowledging that he made poor decisions and that his initial decision to attend Mr. S.’s residence was as a result of a sense of loyalty to his co-accused.

[29]        At the sentencing hearing Mr. Last acknowledged that he did not listen to advice he received to get away from Prince George and the criminal lifestyle when he had the opportunity.  He confirmed that he made bad choices which he cannot undo and regardless of the sentence he receives he wants to pursue his career in automotive mechanics and be a productive citizen.

THE LAW

            Criminal Code

 

[30]        The relevant sections of the Criminal Code are:

a)            718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a)      to denounce unlawful conduct;

(b)      to deter the offender and other persons from committing offences;

(c)      to separate offenders from society, where necessary;

(d)      to assist in rehabilitating offenders;

(e)      to provide reparations for harm done to victims or to the          community; and

(f)        to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

 

b)            718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

 

c)            718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a)       a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender,…

 (b)      a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d)       an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e)       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.

            Case Law

[31]        The Crown relied on the following cases:

a)            R. v. Ross 2009 BCSC 1831

b)            R. v. Forrester 2004 BCSC 1310

c)            R. v. Johnson 1998 Can LII 4838

d)            R. v. Hill 1995 Can LII 3080

 

[32]        Defence counsel relied on the following cases:

a)            R. v. Furtado 2014 BCSC 405

b)            R. v. Hockley 2013 BCSC 113

c)            R. v. Matsos 2009 BCSC 1813

 

[33]        Other cases referred to in the cases presented by counsel were relied on in arriving at a decision in this matter and they include:

a)            R. v. M. (C.A.) 1996 CanLII 230 (SCC), [1996] 1S.C.R. 500

b)            R. v. Bernier 2003 BCCA 134

c)            R. v. Whicher (2002) 2002 BCCA 336 (CanLII), 165 C.C.C. (3d) 535 (B.C.C.A.)

d)            R. v. N.P.D. 2002 BCCA 304 (CanLII), [2002] B.C.J. 1172 (B.C.C.A.)

e)            R. v. Nakamura 2012 BCSC 327

f)            R. v. Luttman 2005 BCSC 405

 

 

SUBMISSIONS

            Crown

[34]        The Crown relied on its cases in support of the submission that the appropriate sentence should be incarceration in a penitentiary.  Such a sentence, the Crown submitted, must give emphasis to the principles of denunciation, deterrence and protection of the public over that of the rehabilitation of Mr. Last.

[35]        The Crown noted the following to be aggravating factors:

a)            There was some planning, although limited, before the assault was committed;

b)            Mr. Last and Mr. Hornby invaded Mr. S.’s home in order to commit the assault, exercising vigilante justice;

c)            Mr. S. was an innocent victim;

d)            The attack was vicious, and given the weapons used, could have proved fatal.

 

[36]        The Crown acknowledged that there were mitigating factors that include:

a)   Mr. Last has abided by the terms of his bail and the terms of his previous Conditional Sentence Order;

b)   Mr. Last indicated his wish to plead guilty before the scheduled trial in Supreme Court and entered his guilty plea in this Court in November 2013;

c)   The Pre-Sentence Report was positive and indicated a low risk of Mr. Last re-offending;

d)   Mr. Last’s appearance since the time of the assault has changed dramatically.  He has become more presentable and looks less like a gangster.

 

 

 

            Defence

[37]        Defence counsel’s submissions are summarized as follows:

a)            Mr. Last has some mental health issues which were not properly addressed while he was living in Prince George;

b)            Those mental health issues combined with his desire to fit in with his criminal peers resulted in Mr. Last following along with the plan to assault Mr. S.  It was at that time and in that state of mind that Mr. Last obtained the baseball bat used in the assault;

c)            Both prior to and subsequent to his time in Prince George Mr. Last did not display any anti-social behaviours despite being bullied as a youngster.  Since returning to Kelowna, Mr. Last has participated in counselling and accessed mental health resources;

d)            Since returning to Kelowna, Mr. Last has obtained full-time apprentice employment and a sponsorship for a Red Seal trades certificate.  He is taking genuine steps to be a better community member;

e)            Mr. Last has been fully compliant with various orders and direction the Court has placed on him for several years;

f)            Mr. Last’s last conviction involved firearms and arose because he had become a subordinate to a very notorious criminal with gang connections.  He testified against that person, who was subsequently convicted of a number of very serious offences and is now incarcerated in a federal penitentiary for a very long time; 

g)            Given his guilty plea and Mr. Hornby’s decision to have a trial it is likely Mr. Last will be asked by the Crown to testify against him;

h)           Given his cooperation with the authorities, Mr. Last would have a very difficult time in prison.  He would have to be kept in protective custody and even then his life would be jeopardy.  During the trial where he gave evidence, Mr. Last was under police protection;

i)            Although there are general ranges of sentence for various types of offences, sentencing remains a very personalized process and the Court must engage in a very careful analysis of all the factors to arrive at a just and appropriate sentence.

[38]        The Crown did not contest Defence counsel’s submission that, at an earlier time, they would not have opposed a Conditional Sentence Order had one been available, because of the assistance Mr. Last provided to the Crown as a witness in the aforementioned trial

DISCUSSION

[39]        Mr. Last has only pled guilty to Count 2, a charge of assault with a weapon, although it is clear from the allegations set out in Count 1 and the facts alleged by the Crown that the assault against Mr. S. took place after Mr. Last and Mr. Hornby had forced their way into his residence.

[40]        Had Mr. Last been found guilty of or pled guilty to Count 1 on the Information, the provisions of section 348.1 of the Criminal Code would have come into play as an aggravating circumstance for the purpose of sentencing.  Count 1 would have satisfied the circumstances of an offence broadly described as a “home invasion”; the convenient term the courts have used to describe a break and enter of an occupied dwelling and committing offences against the occupants.  The fact that there was no such plea entered casts the circumstances of this case in a somewhat different light than many of the cases relied on by the Crown.

[41]        Despite that situation it is clear from the case law that in circumstances such as occurred in this case “rehabilitation must take a second place to the principles of protection of the public, denunciation and deterrence…” (N.P.D. at paragraph 23).

[42]        Depending on the nature of the case, sentencing courts often refer to a sentence as falling within a “range” which is based on previous case law and directions from the appellate courts.  However, the appellate courts also make it clear that the concept of a “range” does not preclude a different type of sentencing.

[43]        In any case the facts surrounding circumstances of the offence, circumstances of the offender and the offender’s criminal history, if any, are critical to the sentencing process.

[44]        Given that every case must be decided upon its own merits and own set of circumstances, all the purposes and principles of sentencing set out in section 718 through 718.2 must be given due consideration in each case.

[45]        In paragraph 42 of Bernier to the Court of Appeal stated:

42. A “range” does not preclude on grounds of deterrence or denunciation or the gravity of the particular offence a sentence different from that “range”. Nor does a “range” preclude a lesser sentence if some special circumstances warrant such a course. When considering any particular case similar to R. v. D.H.W. or to R. v. N.P.D. or to this case, trial judges and this court will have in mind those sentences as part of the “range”. The “range” is not conclusive.

 

[46]        In paragraph 92 of M.(C.A.) Lamer C.J.C. said:

92. It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime; see Mellstrom, Morrissette and Baldhead. Sentencing is an inherently individualized process and the search for single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.  As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[47]        In paragraph 24 of Whicher, Hall, J.A. reminded sentencing judges not to ignore rehabilitation, particularly of younger offenders when he said:

24. Regard must be had to the nature of the offence and the history and prospects of the offender. Where younger people are involved; the courts will endeavor, if at all possible, to foster the possibility of rehabilitation. In the long run, if the young person can be turned away from the course of repeated offences, then the interests of society will be served. Courts must also impose sentences that adequately mark society’s disapproval of the offender’s breach of societal norms and that will deter both the individual offender and others minded to offend, from conduct harmful to the fabric of an orderly society.

 

[48]        Based on those broad pronouncements, as well as the principles and purposes of sentencing as described in the Criminal Code and the case law, I must determine the aggravating, mitigating and other factors present in this case in order to determine a just and appropriate sentence for Mr. Last.

[49]        I find the following to be aggravating factors in this case:

a)            the assault was preceded by a level of planning and premeditation,

b)            the assault occurred after an invasion of Mr. S.’s privacy in his residence;

c)            the weapons used were capable of causing grievous harm;

d)            the injuries Mr. S. sustained could have been life-threatening;

e)            Mr. Last’s criminal history, although relatively short, includes weapons and assault convictions;

f)            at the time of the assault Mr. Last was engaged in a gang criminal lifestyle with like-minded peers.

[50]        I find the following to be mitigating factors in this case:

a)            Mr. Last entered a guilty plea to this matter relatively early in the process;

b)            Mr. Last was engaged in a pro-social lifestyle while living in Kelowna both as a youth and since returning to Kelowna;

c)            Mr. Last has found steady and remunerative employment with good prospects for personal and professional growth;

d)            Mr. Last’s abuse of drugs has ceased since he returned to Kelowna and he has undertaken both treatment and counselling;

e)            Mr. Last has been fully cooperative with Community Corrections during the time he served his Probation Order, and Conditional Sentence Order, and he has done well on Bail for this matter.

 

[51]        There are other factors that must be considered in this case including:

a)            Mr. Last is still of a relatively young age;

b)            Mr. Last has had mental health issues for some time which were only put properly under control since his arrest on this matter;

c)            Mr. Last has been cooperative with the Crown in pursuing a prosecution which resulted in a lengthy prison sentence for a dangerous criminal heavily involved with illegal weapons;

d)            now that he has been convicted and sentenced on this matter, Mr. Last may be subject to being called as a witness against Mr. Hornby;

e)            The sentence to be imposed on Mr. Last is for a charge of assault with a weapon and not the more serious charge of break and enter and committing an indictable offence.

 

[52]        In considering all of the factors set out above, Mr. Last’s personal circumstances, his criminal record, the circumstances of the offence and what I consider to be the special circumstances of his cooperation with the authorities in the prosecution of a serious criminal, I am not satisfied that the Court needs to give emphasis to the sentencing principles of deterrence and protection of the public.

[53]        There is no doubt that Mr. Last’s behaviour must be denounced in the strongest of terms and that he should receive a sentence that reflects the community’s views on such violent behaviour.

[54]        However, given Mr. Last’s relatively young age and the strides he has made since the events that bring him before the Court, rehabilitation must be given more emphasis.  In this case, a jail sentence is not required because Mr. Last does not need specific deterrence; he has turned his life around.  The public does not need protection from him given his now pro-social lifestyle.  Those who Mr. Last associated with in the past during his drug culture lifestyle are unlikely to be deterred by any sentence the Court imposes on Mr. Last.

[55]        In these circumstances an appropriate sentence for Mr. Last is a suspended sentence with a lengthy period of probation, including terms to assist him in maintaining his sobriety and to encourage him to maintain a pro social lifestyle.

DECISION

Ancillary Orders

[56]        As part of the sentence, the Crown has sought various ancillary orders.

[57]        Count 2 is a primary designated DNA offence.  Pursuant to s. 487.051(1) of the Criminal Code, I make an order in Form 5.03 authorizing the taking of a number of samples of bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from Geofferery John Last.

[58]        Pursuant to s. 487.051(4) of the Criminal Code, I further make an order in Form 5.041 that Geofferery John Last shall attend on or before March 31, 2015 between the hours of 9:00 A. M. and 4:00 P.M. at the Royal Canadian Mounted Police Detachment, at 350 Doyle Avenue, Kelowna, BC and submit to the taking of the samples.

[59]        Count 2 also attracts a mandatory firearms prohibition pursuant to s. 109 of the Code.   This is Mr. Last’s second such prohibition.  Geofferery John Last is prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for life.

SENTENCE

[60]        I suspend the passing of sentence and impose a Probation Order.  The Probation Order will be for three years and will have the following terms and conditions:

a)            You shall keep the peace and be of good behavior.

b)            You shall appear before the court when required to do so by the court.

c)            You shall notify the court or the Probation Officer in advance          of any change of name, or       address, and promptly notify the court or the Probation Officer of any change of employment or occupation.

d)            You shall report in person to the Probation Officer no later than 4:00 pm, March 25, 2015 at the Probation Office located at #101-250 GEORGE STREET, PRINCE GEORGE, B.C., and after that you shall report as and when directed by the Probation Officer.

e)            After your first reporting to the Probation Officer further reporting may include reporting by telephone, at the discretion of the Probation Officer.

f)            When first reporting to the Probation Officer, you shall inform him/her of your present residential address and phone number, and you shall not change your address or phone number at any time without first obtaining the written consent of the Probation Officer.

 

g)            You shall have no contact, directly or indirectly with Chris Andrew Hornby or R. S. except as follows:

 

                                          (i).        while in attendance at court.

 

h)           You shall not attend at or be within 100 kilometers of Prince George, BC except as follows:

 

                                      (i).   with the written consent of the Probation Officer obtained in advance, or

 

                                    (ii).   if you are subpoenaed to give evidence in a court proceeding and on such occasions you shall not arrive in Prince George sooner than 1:00 pm the day before the date on the subpoena and you shall depart Prince George not later than 10:00 am the day after your evidence is concluded.

 

i)            You shall not possess or consume any controlled substance within the meaning of section 2 of the Controlled Drugs and Substances Act, except as prescribed for you by a physician.

 

j)              You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the Probation Officer.  Without limiting the general nature of this condition, such assessment, counseling or program may include and relate to anger management, alcohol and drug abuse, psychiatric and psychological health and you shall comply with all the rules and regulations of any such assessment, counselling or program.

 

k)            You shall take reasonable steps to maintain yourself such that your condition of 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 any criminal offence.

 

At the direction of the Probation Officer, you will attend from time to time upon your treating physician or other mental health resources you are referred to for the purpose of receiving such medical counseling 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 any form of medical treatment or medication recommended for you, you shall so notify the Probation Officer immediately.

 

You shall provide your treating physician with a copy of this Order and the name, address and telephone number of the Probation Officer. You shall instruct your treating physician that if you fail to take medication as prescribed by him/her, or fail to keep appointments with him/her, he/she is to so advise the Probation Officer immediately.

 

l)            Under the direction and supervision of the Probation Officer you shall successfully complete 75 hours of community work,

                                          (i).        which shall be performed at a rate of no fewer than 5 hours per month.

 

[61]        In the event Mr. Last breaches his Probation Order in any way, I would encourage the Crown to have him brought before me so that consideration may be given to imposing the suspended sentence.

[62]        The Victim Fine Surcharge will apply.

 

__________________________

M. J. Brecknell

Regional Administrative Judge

Northern Region

Provincial Court of BC