IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Barnhart has pled guilty to the following offences, all of which occurred in Kelowna, B.C.

[2]           Crown counsel seeks a sentence in the range of 6-7 years less the time Mr. Barnhart has already spent in custody.

[3]           Mr. Barnhart’s counsel argues that a sentence of 2 years in addition to the time he has already spent in custody followed by 3 years’ probation would be more appropriate.

[4]           Mr. Barnhart has been in custody for 415 days and it is conceded by both counsel that taking into consideration enhanced credit, I should treat that as 613 days.

[5]           Mr. Barnhart is 25 years old.  He is currently in a relationship but does not have any children.

[6]           Mr. Barnhart’s childhood was chaotic.  His family moved frequently and his mother’s relationships were marred by domestic violence.  He too was physically and mentally abused by her partners.  Growing up Mr. Barnhart was also abused by his brother David, who had to eventually be placed in foster care.

[7]           Mr. Barnhart still maintains a close relationship with his mother.  His mother suffers from several health problems and has been told that her life expectancy is approximately 4 years.  Before being taken into custody, Mr. Barnhart helped care for his mother.

[8]           Mr. Barnhart also has a sister who lives in Victoria.  He describes his sister as a positive influence, but because she lives in Victoria their contact is restricted.

[9]           After leaving home at 18, Mr. Barnhart has struggled to maintain stable housing and employment.  He dropped out of school in grade 10.  Both Mr. Barnhart and his family members attribute this to his use of drugs.

[10]        Mr. Barnhart has a criminal record for criminal harassment, breach of probation and theft under $5000.  Two of the sentences resulted in probation orders and the third 1 day in jail.

[11]        At the time of his offending behaviour, Mr. Barnhart was collecting Persons with a Disability Benefits totalling $906 per month.  He began collecting this pension when he was 19.

[12]        Mr. Barnhart has a history of mental illness, including depression and anxiety.  He has engaged in self-harm and attempted suicide in the past by trying to hang himself, overdosing on pills and trying to cut his own throat.

[13]        In June 2015 he attempted to complete a withdrawal management program at the Bridge Youth and Family Services.  He lasted 3 days before voluntarily discharging himself.  In August he re-enrolled and completed the withdrawal management program and then entered a treatment program.  Unfortunately, he was removed from the program for behavioural issues.

[14]        On September 27, 2015 he was hospitalized after writing a suicide note and overdosing on heroin.  He was discharged on October 12^th, 2015.

[15]        The discharge records from his stay in the hospital reflect a diagnosis of major depressive order, polysubstance abuse, anti-social traits, a head injury and epilepsy.  The head injury dates back to a bike accident when he was 12 years old wherein he suffered a brain injury.  The exact extent of the injury is unknown but collaterals commented that his behaviour and overall functioning changed after his accident.

[16]        The same day he was discharged, he was hospitalized again under the Mental Health Act and discharged the next day.

[17]        The discharge summary indicated planning for Mr. Barnhart to enter the methadone program.

[18]        Nine days prior to the robbery of Ms. Leier, Mr. Barnhart met with a nurse about enrolling in the methadone program.

[19]        Mr. Barnhart’s use of illicit drugs began at a very early age.  He began smoking pot when he was 10.  At 14 he began snorting his entire prescription of Ritalin.  By 16 he was drinking alcohol and using cocaine on a regular basis.  At 19, he began using crack cocaine, crystal meth and heroin.  He self-reports that the longest period of abstinence from drugs prior to being incarcerated on these matters was 60 days.

[20]        Mr. Barnhart has been supervised by Community Corrections on two previous occasions.  Their records indicate attempts to help Mr. Barnhart deal with his addictions.  Unfortunately, they were met with limited success because Mr. Barnhart failed to follow through.

[21]        Mr. Barnhart has made good use of his time in custody and trying to improve his station in life.  He has taken upgrading to obtain his grade 12.  He entered the methadone program and claims to be drug free since his arrest.  He has taken a rehabilitation program called Violence Prevention and has been an active participant in Narcotic Anonymous.

[22]        Mr. Barnhart says that he is committed to completing a residential treatment program after his release.

[23]        The submissions of counsel establish the following facts:

[24]        On March 15, 2015, Mr. Lalonde, who is in his 70’s, was at Tim Hortons in Kelowna.  He had his briefcase with him.  The contents of the briefcase were valued at approximately $6,000.00.  When he was not looking, Mr. Barnhart grabbed the briefcase and fled.  He was pursued by two others and eventually a police officer.  When Mr. Barnhart saw the police officer he dropped the briefcase and immediately surrendered.  Mr. Barnhart was not aware of the value of the briefcase’s contents.

[25]        He was eventually released on a promise to appear and undertaking.

[26]        One of the terms of Mr. Barnhart’s undertaking required him to report to a bail supervisor.  Although he had reported previously, he failed to report on September 28, 2015.

[27]        On June 5, 2015, Mr. Barnhart was placed on probation for theft under. The probation order required him to report to a probation officer and he failed to do so on October 2, 2015.

[28]        Shortly after 2 a.m. on October 25, 2015, Mr. Barnhart entered Ms. Leier’s residence through a kitchen window.  The frame to the window was bent.  Mr. Barnhart likely used a crowbar that he brought with him to the scene to gain entry.

[29]        Mr. Barnhart’s face was covered.

[30]        Ms. Leier, who is 85 years old and lives alone woke up to the noise of Mr. Barnhart inside her residence.  She called out and turned on the light in her bedroom.  She then picked up a phone to call police but a male, now identified as Mr. Barnhart, entered the bedroom, and grabbed the phone from her.  Ms. Leier said that the man had a green club, albeit the Crown is not alleging that Mr. Barnhart possessed it as a weapon.  The two struggled. Ms. Leier described being “bounced around”, and suffering some minor bruising.

[31]        Mr. Barnhart then pulled Ms. Leier into a utility room, opened an entry into a crawl space and made her sit down.

[32]        Mr. Barnhart then began filling a bag with beer.  He asked Ms. Leier for painkillers and she told him that she did not have any.  He wanted her rings, but she refused to take them off.  She gave him $30.00-$50.00 in change that she was able to find in various containers around the house.

[33]        Mr. Barnhart then grabbed a scarf and tied it around her mouth in an attempt to muzzle her.  As he did it, he was telling her to keep quiet.

[34]        Mr. Barnhart kept demanding money so Ms. Leier went to her bedroom and took $200.00 from her wallet and gave it to him.  She left her purse in her bedroom.  Mr. Barnhart went to the bedroom to grab the purse and Ms. Leier seized the opportunity to escape.  She went across the street and asked her neighbour, Ms. Meecham, to help.

[35]        When police arrived Mr. Barnhart had already left.  Ms. Leier determined that in addition to the $200.00+ dollars she had given him, he also took her purse along with some of her credit cards.

[36]        Within a couple of hours of the break and enter, a police service dog followed a track to Mr. Barnhart’s mother’s place which was a short distance away.  Mr. Barnhart’s stepfather confirmed that Mr. Barnhart had been out earlier that morning and just arrived home.  Police also spoke to Mr. Barnhart who confirmed he had been out.

[37]        Approximately 7 hours later, Mr. Barnhart withdrew $800.00 from Ms. Leier’s bank using her ATM card. Police were able to confirm his identity through the bank’s surveillance video.

[38]        He then went on to use the card to purchase jeans, food at Tim Hortons, a cell phone and SIM card at London Drugs.  Police were able to identify Mr. Barnhart from the video surveillance footage.

[39]        Police obtained a search warrant and found several items in Mr. Barnhart’s bedroom linking him to the break and enter.  All of the items he purchased with Ms. Leier’s card, cards from her purse, and the purse were located by police.

[40]        Police also found 3 of Ms. Leier’s personal cheques.  One cheque was made out to Mr. Barnhart’s mother for $400.00, a second for $500.00 and the third was still blank.

[41]        After locating these items, police arrested Mr. Barnhart.  He was searched and police found some crystal meth and cocaine in his pockets.

[42]        Mr. Barnhart’s mother told police that Mr. Barnhart gave her the purse belonging to Ms. Leier.  She also identified a yellow crowbar that was left behind, along with a flashlight and fanny pack at Ms. Leier’s residence as belonging to her.

[43]        Mr. Barnhart’s mother also confessed to contacting Ms. Leier’s credit card company, and impersonating Ms. Leier in an effort to obtain the personal identification number and increase the credit limit on the card.

[44]        In addition to the very helpful pre-sentence report prepared in this matter, I also reviewed the equally helpful psychiatric report prepared by Dr. Beauchemin.  Dr. Beauchemin reiterates much of what was identified in the pre-sentence report.  In particular that Mr. Barnhart’s offending behaviour is motivated by his need to fuel his drug addiction.

[45]        Dr. Beauchemin concluded that the previous diagnosis of major depressive disorder was short lived and linked to his drug use.  He agreed that Mr. Barnhart does have antisocial personality traits and that his substance abuse disorder is severe.

[46]         Dr. Beauchemin characterizes Mr. Barnhart’s risk for future violence as ‘moderate’.  He opines that although Mr. Barnhart has insight into his offending behaviour, he still minimizes the risk that he poses when he is under the influence. According to the doctor, the major risk factor for Mr. Barnhart and society is history of chronic polysubstance use, which is currently in early remission in a controlled setting.  The only way for Mr. Barnhart to minimize any risks going forward is to abstain and take residential treatment.

[47]        The fact that Mr. Barnhart pled guilty at an early stage after retaining Mr. Stephenson is worthy of consideration.

[48]        It provides certainty and finality in these proceedings.  By doing so, he has spared the state the expense of a trial but more importantly, Ms. Leier and her family the uncertainty of the outcome of a trial and having to testify.

[49]        However, I must exercise care in not overstating the mitigating effect of the guilty plea where, as in this case, the offender was faced with overwhelming evidence of his guilt.

[50]        Although much of the evidence was circumstantial, it demonstrated a direct link to Mr. Barnhart.

[51]        Mr. Barnhart’s guilty plea in itself is an expression of remorse.  He also expressed in words his genuine remorse and awareness of the negative impact his actions have had on Ms. Leier and her family.

[52]        Mr. Barnhart has the support of his mother, girlfriend and sister.  Many offenders who come before this court, come alone.  The fact that these people continue to maintain a close connection with Mr. Barnhart is to his credit.  Family support is important for rehabilitation.  Tackling and conquering a drug addiction is not an easy task.  Their support gives me some cautious optimism that Mr. Barnhart can succeed.

[53]        There is no doubt that Mr. Barnhart’s continued incarceration will have an impact on Mr. Barnhart’s girlfriend and more importantly his mother who suffers from some very serious health issues.  Both ladies depend on Mr. Barnhart.

[54]        However, the distress that a member of the accused’s family experiences will rarely be a relevant consideration serving to reduce a sentence.  At most, it can be considered as having a deterring effect.

[55]        During the period leading up to the alleged offence, Mr. Barnhart had been doing crystal meth and self-reports that he had not been sleeping for days.  Although it is unclear whether he was under the influence at the time that he committed the break and enter, his actions demonstrate that he did form the clear intention to commit the crime and knew what he was doing.  If in fact he was under the influence, it served to only lessen his inhibitions and not his moral culpability.

[56]        Mr. Barnhart’s crimes were motivated by his efforts to fuel his drug addiction.  He is quoted in one of the reports as saying, “I only needed more drugs, I was angry, mad at myself, I didn’t care if I lived or died, all I was caring was getting drugs.”

[57]        Addictions and the urge to satisfy the craving can cloud a person’s judgment and mitigate culpability.

[58]        In Azeez, the court provided a helpful summary of court decisions from across the country dealing with offenders who commit crimes because of their addiction to drugs.  The court describes the difference in moral culpability between those motivated by drug cravings versus greed:

[59]        However, when it leads one to act out violently, the courts are less forgiving and place less weight on the addiction as mitigating factor.

[60]        In R v Hamlyn, the Alberta Court of Appeal made the following observation about addictons and violence:

[61]        Furthermore, any mitigation that might flow from Mr. Barnhart’s addiction must be tempered by his lack lustre response to Community Corrections’ efforts to help him tackle his drug addictions.

[62]        The professionals describe Mr. Barnhart as having insight into his offending behaviour.  He is committed to following through with whatever treatment or counselling is required to address his addictions.  However, the professionals also say that despite his insight, Mr. Barnhart continues to minimize the risk he poses to others when he is under the influence of alcohol or drugs.

[63]        Mr. Barnhart made positive use of his pre-trial custody by engaging in programs and entering the methadone program.  Even with the limited programs in a remand setting, the accused has been motivated to make maximum use of what was available.

[64]        The change in Mr. Barnhart appears to be bona fide and not self-serving.  His efforts are worthy of credit because they demonstrate a recognition of problems and a commitment to remedying them.  It provides cautious optimism that Mr. Barnhart has turned the corner and is ready to put his drug lifestyle behind him.

[65]        Where there are real and substantial grounds to believe an offender is sincere about rehabilitation, the principle of rehabilitation can at least share an equal footing with deterrence and denunciation.  It is through the realized rehabilitation of an offender that protection of the public is best achieved.

[66]        Although Mr. Barnhart is 25 years old, for the purposes of sentencing he is still considered a youthful offender by the courts.

[67]        Youthful offenders are seen as having a greater chance of reforming and maturing over time.

[68]        When dealing with young people, judges should consider the least restrictive form of punishment and jail should be a last resort.

[69]        An accused is sentenced for the offences before the court, and not for his life history.  However, this does not mean that a criminal record cannot be an aggravating factor used to increase the severity of the sentence.

[70]        A criminal record is not always an aggravating factor; sometimes it is, but other times it is simply a factor to be considered, or neutral.

[71]        In the case at hand, the record is aggravating because it reflects prior convictions for both violent and property related offences.  The offence and conviction dates are also relatively recent.

[72]        However, Mr. Barnhart’s record does not demonstrate that he is commited to a life a crime, nor that the prospects of rehabilitation are bleak.

[73]        Although the break and enter of Ms. Leier’s residence did not require careful and sophisticated planning, some degree of planning was required to determine how to enter the residence, the tools required, and how best to conceal one’s identity.  Break-ins involving planning and some degree of professionalism, and going equipped with tools is always more serious than the offender who merely comes across an opportunity.

[74]        As already noted, the wearing of disguise and the use of gloves in order to commit the offence indicates a degree of planning.

[75]        Offences are more difficult to solve when disguises are used making deterrence a primary objective of the sentence.  Covering one’s face can also heighten the degree of fear and trauma to the victim.

[76]        However, since Mr. Barnhart is separately charged with having his face masked, I am not taking this into account as an aggravating factor on the break and enter charge.

[77]        Pursuant to section 348.1 of the Criminal Code, I am requited to consider as an aggravating factor the fact that the house was occupied at the time of the commission of the offence, and that the accused knew that or was reckless as to whether it was occupied, and secondly that he used violence or threats of violence to a person inside.  Given the time of night it would have been readily apparent to Mr. Barnhart that someone might be home.

[78]        Pursuant to section s. 718.2(a)(iii) of the Criminal Code, it is a statutory aggravating factor when the victim is elderly.  Ms. Leier was 85 years old and living alone.

[79]        Mr. Barnhart’s actions of taking the phone away from Ms. Leier is no different from those offenders who break the phone to prevent their victim from calling for help.  He also wrapped a scarf around her, again in an effort to silence her.

[80]        Not only did Mr. Barnhart keep a close watch on his victim, he deliberately took her to a utility room crawl space where she was confined.  Postive actions such as this to prevent the victim from seeking help increases the degree of seriousness.

[81]        The consequencs to the victim is always a relevant factor.

[82]        The types of harm caused or risked by different types of criminal activities are diverse.

[83]        The degree of force, harm, risk of harm and fear experienced by the victim informs the seriousness of the offence and culpability of the offender.

[84]        The inherent risk of serious harm by involving himself in a struggle with a person as old as Ms. Leier and then covering her mouth with a scarf would have been apparent to Mr. Barnhart.

[85]        Although Ms. Leier sustained some minor bruising, the psychological impact has been significant.  She is 85 years old and less than a year prior to the break and enter began living alone because her husband moved into a nursing home.  Mr. Barnhart’s action completely dismantled any remaining sense of security she had.  She continues to live in fear that her residence will be broken into again, or that Mr. Barnhart will return to exact his revenge when he is released from jail.  She takes medication for the first time in her life to deal with anxiety.

[86]        Committing an offence while on probation or bail is an aggravating factor.  It suggests less potential for rehabilitation.  The need to isolate an offender from society is increased if the offender does not obey court orders that are designed to protect the public.

[87]        The timing of Mr. Barnhart’s breach in relation to the making of the order is also a significant factor.  A breach that is sufficiently proximate to the making of the order shows that the accused has little respect for the order.

[88]        Although I accept that prime motivation for Mr. Barnhart was to fuel his drug addiction, I do not accept that it was the only motivating factor.  There was an element of greed.  Following the break and enter, Mr. Barnhart gave Ms. Leier’s purse to his mother, purchased a pair of pants and cell phone for himself with her credit card and made out some cheques to his mother using Ms. Leier’s cheques.

[89]        The objective seriousness of the crime of breaking and entering a dwelling house is reflected by the maximum sentence of life in prison.

[90]        In Vickers, in discussing the objectives and principles of sentencing in “home invasion type” cases, the British Columbia Court of Appeal had this to say:

[91]        Denunciation is paramount consideration in cases of this kind.  Courts must denounce in strong terms the violent violation of the sanctity and privacy of a home.  Society’s collective condemnation must be strongly emphasized.

[92]        With respect to general and specific deterrence, Mr. Barnhart and other like-minded individuals, must receive a stern message that it is not a profitable enterprise, even if it is only to support a drug habit, and not a risk they should engage in.  Break and enters with violence have resulted in serious harm and even death to the victim, despite the fact that it is often not something the perpetrators had in mind when they decided to engage in such activity.  The deterrent effect of the sentence must promote avoidance of this type of activity regardless of the motivation.

[93]        Given Mr. Barnhart’s age, his own rehabilitative efforts while in custody, his rehabilitation must remain a significant factor.  It must serve to moderate an even more substantial sentence. However, it can and will not displace the need to emphasize denunciation and deterrence.

[94]        With respect to the principles of sentencing set out in section 718.1 of the Criminal Code, the gravity of the offence and the responsibility of Mr. Barnhart, the offence is grave and Mr. Barnhart, despite his addiction, bears a high degree of responsibility for his actions.

[95]        The Crown referred to a number of “home invasion” cases which establish a range of 6-10 years for a breaking and entering a dwelling house and accosting the occupant(s):

[96]        Most of the cases provided were situations where the offender was found guilty after the trial as opposed to this situation, like the one at hand, where the offender pled guilty and accepted responsibility.

[97]        In Bernier, Prowse J.A., indicates that absent unusual factors, the range is between 5 to 9 years for offences of this nature.

[98]        In Brossault, 2009 BCSC 464, Mr. Justice Joyce commented as follows with respect to the range suggested in Bernier:

[99]        Although prior cases assist in determining where a particular case falls within a particular range, ultimately, the sentence imposed must be based on the circumstances of the offender, the offences, and the application of the appropriate objectives and principles of sentencing. The range is merely a guideline.

[100]     After considering all the circumstances, including the principle of totality, I am satisfied that an appropriate sentence is as follows:

[101]     On Count 1 the sentence I would have imposed is 5 years or 1,800 days. You have been in custody for 415 days and I am granting you enhanced credit of 623 days. The sentence is 1,177 days with the following ancillary orders:

[102]     On Count 2 the sentence is 6 months or 180 days to be served consecutively.

[103]     The sentence is 7 days to be served consecutively.

[104]     The sentence is 7 days to be served consecutively.

[105]     The sentence is 14 days to be served concurrently.

[106]     The victim surcharges are waived.