IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The offender, Mr. Lam, pled guilty to break and enter (2 counts), robbery, and breach of a recognizance.  A sentencing hearing was held and the Crown argued that a total sentence of 8 - 9 years was required however after applying the totality principle the Crown argued for a sentence in the range of 5½ - 7 years.  Counsel for Mr. Lam argued that a fit sentence was time served after pre-sentencing credit of 18 months and probation for 3 years.  The task for this court is to identify a sentence that is fit and appropriate in all of the circumstances.

[2]           On July 19, 2015, at approximately 4:00 am a passenger in a vehicle called 911 and reported seeing a male smash out a window and enter a store in the 900 block of West Georgia Street. 

[3]           Within 4 minutes of the 911 call, the police arrived, the suspect was gone and it was determined that a break and enter had occurred to the Dior Store.  Investigation revealed that the suspect had entered by using a sledge hammer and that 45 purses were stolen with a total value of $273,720.00 (two hundred seventy three thousand seven hundred twenty dollars). 

[4]           Investigation also revealed the suspect was a male who was wearing a dark hoodie and dark pants.  Blood droplets were located inside the store and sent to the police laboratory.  DNA was extracted from the blood and eventually matched to Mr. Lam.

[5]           On August 29, 2015, the police stopped Mr. Lam who was driving a Toyota truck with stolen license plates.  Inside the truck the police located a sledge hammer, gloves and a balaclava.  Based on these findings the police suspected that Mr. Lam was responsible for breaking into high end retail outlets and as a result they placed him under surveillance.

[6]           On September 16, 2015, the police watched Mr. Lam purchase a large sledge hammer.

[7]           On September 21, 2015, at 1:20 am, the police followed Mr. Lam as he drove from his home to various locations.  Of note, is during the surveillance the police noticed that Mr. Lam had placed a stolen license plate on the rear of his vehicle. 

[8]           The police continued following Mr. Lam and at 4:59 am he stopped in the 900 block of West Georgia Street.  Mr. Lam exited his vehicle and started smashing the glass to the Gucci store with a sledge hammer.

[9]           Mr. Lam gained entry to the store and exited with 6 purses.  The value of the purses was $11,000.00.  Mr. Lam was arrested with the assistance of a police dog.  Police searched Mr. Lam’s truck and they located a stolen license plate, runners, a balaclava, a grey hoodie and a screw driver with a modified tip.  Damage to the store was $20,000.00.

[10]        The police interviewed Mr. Lam and he originally denied involvement in the matter.  He eventually confessed to the offence and stated he had money problems.

[11]        Mr. Lam appeared in court and was released on a recognizance with some of the following conditions; a requirement to keep the peace and be of good behaviour, an area restriction, a prohibition from possessing tools and a curfew.

[12]        On February 22, 2016, Mr. Lam threw a small canister device, later determined to be a smoke grenade into the Holt Renfrew store on Dunsmuir Street in Vancouver.  He then made his way into the store via a different set of doors and he started grabbing a number of Christian Dior purses.  Ms. Wong, who was an employee, asked Mr. Lam what he was doing and in response he displayed a canister that had string hanging from it.  Police later determined that the canister was a smoke grenade.

[13]        Upon seeing the canister Ms. Wong backed away and notified security.  Mr. Lam then fled from the store with 6 purses.  Security pursued Mr. Lam and when they approached him a struggle ensued.  During the struggle Mr. Lam placed a security officer in a head lock and gouged his eye.  Eventually Mr. Lam was handcuffed and taken back to the store.

[14]        In total 6 purses were stolen with a value of $31,800.00 (thirty one thousand eight hundred dollars).  All of the purses were recovered; however, 2 were damaged and could not be sold. 

[15]        Once back at the store Mr. Lam was placed in a holding room.  While in the room he continually tried to move his hands from the handcuffed position of behind his back to the front of his body.  He was also observed using a small piece of metal in an effort to defeat the locking mechanism on the handcuffs.  Mr. Lam was searched and located was a smoke grenade and a small amount of crystal methamphetamine. 

[16]        The police eventually arrived and Mr. Lam was transported to the police station where he was interviewed.  In addition to dealing with Mr. Lam, police experts were called to the scene to deal with the smoke grenades.  This was necessary because the labels had been removed and therefore the police were required to ensure that they were not explosive devices.

[17]        During his interview Mr. Lam expressed that the stolen items were covered by insurance and that the employees who might have been traumatized by the events would be entitled to Workers Compensation. 

[18]        Shortly after his arrest for the robbery Mr. Lam was released on a recognizance with several terms and conditions including a curfew.  On May 7, 2016, the police conducted a curfew check at Mr. Lam’s residence.  Mr. Lam did not present himself at the door and his mother advised that he had gone out earlier in the day and had not come home.  The time of the check was at 2:13 am whereas his curfew required him to be at his residence at 9:00 pm.

[19]        Counsel agree Mr. Lam is entitled to a pre-sentence custodial credit calculated on the basis on 1.5:1 for every day in custody.  As such, Mr. Lam has been in custody since his arrest in May of 2016 for breach of his recognizance.  Accordingly, and after considering the time he spent in custody in September 2015, and February 2016, Mr. Lam’s actual pre-sentence time is 13 months 4 days, which entitles him to a credit of 19 months 21 days.

[20]        Mr. Lam is 41 years old.  He had a stable up-bringing wherein his parents were hard working and frequently away from the home.  As such, Mr. Lam had little supervision and he began associating with a negative peer group.  According to the pre-sentence report it was this association that contributed to his early criminal record.

[21]        With respect to his criminal record, Mr. Lam accumulated youth convictions during the years 1992, 1993 and 1995; these were for property offences.  As a youth, the maximum sentence that he received was 4 months secure custody.  Thereafter and as an adult, Mr. Lam was convicted of break and enter in 1996, possession of stolen property in 2000 and in 2001.  As an adult Mr. Lam’s longest custodial sentence was 21 days.

[22]        In 2001, Mr. Lam made changes in his life.  He disassociated himself from negative peers, he went back to school and he enlisted with the Army Reserves where he worked with the 15 Field Artillery Unit until 2015.

[23]        With respect to schooling, Mr. Lam started taking general studies at Kwantlen Polytechnic University, and thereafter obtained a Diploma in Business & Logistics.  Upon completing his schooling Mr. Lam tried to find employment suited to his education.  Unfortunately, Mr. Lam’s criminal record prevented him from gaining meaningful employment. 

[24]        In 2015, Mr. Lam was no longer working with the Army Reserves, he was unable to find employment and he became disappointed and spiraled downward until arrested for the instant matters.  Ms. Cantelon, the probation officer who authored Mr. Lam’s pre-sentence report observed:

[25]        Since being in custody, Mr. Lam has, attended weekly meetings with Alcoholics Anonymous and Narcotics Anonymous, completed his high school graduation requirements and completed 3 self-directed workbooks on Criminal Addictive Thinking, Socialization and Relapse Prevention.  He has had no difficulty in the institution and has been working in the kitchen.

[26]        The court has reviewed the psychological assessment that was prepared by Dr. Kropp, a registered psychologist.  Under the heading, Summary and Recommendations, Dr. Kropp stated:

[27]        Section 718 of the Criminal Code sets out the purpose of sentencing and lists sentencing objectives that will help achieve the stated purpose.  In this regard s. 718 reads:

[28]        In my view, the primary sentencing objectives in the instant matter are denunciation and deterrence.  As such, through the sentence imposed this court will express societies’ abhorrence for the crimes committed by Mr. Lam.  Further, any sentence imposed will serve to deter others; including Mr. Lam from committing similar offences.

[29]        In addition to denunciation and deterrence, I find the rehabilitation of Mr. Lam to be an important but lesser objective.  I arrive at this conclusion because of Mr. Lam’s demonstrated ability to turn his life around.  In this regard he spent 14 years living a productive law abiding lifestyle.  I also arrive at this perspective because of the pre-sentencing rehabilitative steps that he has taken, as well as his stated desire to embark on a positive pathway.

[30]        A fundamental principle of sentencing is found in s. 718.1 of the Code which states:

[31]        A proportional sentence is a fundamental principle of sentencing.  In operation, the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be: R. v. Lacasse, 2015 SCC 64 (CanLII), [2015] 3 S.C.R. 1089.

[32]        The offences committed by Mr. Lam were serious.  The maximum penalty for break and enter is imprisonment for 10 years.  The maximum penalty for robbery is imprisonment for life and the maximum penalty for breach of recognizance is 6 months imprisonment. 

[33]        Mr. Lam’s moral culpability is high, however, I accept Dr. Kropp’s observations that Mr. Lam’s offences appear to have been caused by a combination of “stress and depression related to his unemployment, influence of antisocial associates, and disinhibition associated with stimulant abuse and mental illness.”  In my view, these factors do not reduce Mr. Lam’s culpability rather they assist in understanding his actions and what rehabilitative tools might assist.  Nevertheless, I do observe that the robbery occurred within the context of a failed attempt to steal.

[34]        Section 718.2 sets out other sentencing principles and reads in part:

[35]        The planning and premeditation related to the break and enters is aggravating.  In this regard, Mr. Lam acquired the tools for his crimes, he also acquired stolen license plates and he pre-selected his targets.  Finally, the break and enters targeted high end items wherein significant property damage occurred. 

[36]        As for the robbery, the fear and disruption that Mr. Lam’s actions caused is aggravating.  I do not find that Mr. Lam originally set out to commit a robbery, rather, the events evolved to a robbery after his attempted diversion failed.  

[37]        A further aggravating factor is the robbery was committed while Mr. Lam was bound by a recognizance of bail wherein he was required to keep the peace and be of good behaviour and he was also prohibited from being in the geographic location where the robbery occurred.

[38]        Lastly, Mr. Lam’s criminal record, although dated, is somewhat aggravating.  Specifically, he has convictions for property offences and for a break and enter.

[39]        I find the following to be mitigating.  Mr. Lam’s guilty pleas are significantly mitigating.  His guilty pleas not only saved the state the time and expense associated with a prosecution but he has saved numerous witnesses the inconvenience associated with appearing in court.

[40]        I find Mr. Lam’s remorse to be mitigating.  In this regard, he addressed the court wherein I found him to be genuinely remorseful.  I also note Dr. Kropp’s report wherein he commented on Mr. Lam’s remorse and stated, “He expressed considerable remorse for his crimes.  He indicated that he accepts sole responsibility for his crimes and he wishes he could change the past.” 

[41]        Mr. Lam’s positive steps towards rehabilitation are also mitigating.  While in custody Mr. Lam has taken several programs to assist in his rehabilitation.  He has also developed a plan for support in the community and he is focused on applying himself towards employment where a criminal record will not be a significant obstacle.

[42]        Counsel provided the court with the following authorities; R. v. J.J.Q.G., 2013 BCCA 51; R. v. Evans, 2011 BCCA 479; R. v. Gill, 2006 BCCA 127; R. v. Kiloh, 2003 BCSC 407; R. v. Thompson, 2008 BCCA 350; R. v. Arbuthnot, 2009 MBCA 106; R. v. Buczel, 2015 ONCJ 378; R. v. Ward, 2006 BCCA 153; R. v. Evans, 2011 BCCA 271; R. v. Morris, 2003 BCCA 271.  

[43]        In considering the cases, I am mindful that sentencing is an individualized exercise and that offenders are distinct unto themselves.  I have also observed the numerous distinctions between the facts contained in the cases provided and the facts of Mr. Lam’s offences.

[44]        The range of sentence for robbery is imprisonment for 2 - 9 years: R. v. Gill, 2006 BCCA 127; R. v. Thompson, 2008 BCCA 350.

[45]        While acknowledging the sentencing range for robbery, I also observe the range is associated to those cases where the offender set out with the distinct plan of committing a robbery, in contrast, Mr. Lam did not set out with the intention to commit a robbery.

[46]        I also note, that sentencing ranges are not inflexible and there may be circumstances justifying a departure from the range: R. v. Nasogaluak, (2010), 251 C.C.C. (34) S.C.C. 293.  

[47]        With respect to the sentencing ranges for the offences of break and enter, counsel provided the court with; R. v. Evans, 2011 BCCA 479, and R. v. Buczel, 2015 ONCJ 378.  Both cases do not discuss ranges, however, I note in Evans, the offender was sentenced to 6 months for a commercial break and enter.  Although the sentence for the break and enter was not the subject of the appeal, I do note in the reasons from the court that the sentencing judge concluded that Evans was a career criminal.

[48]        As for Buczel, the case is of little assistance as the offender was being sentenced for a series of break and enters to dwelling houses.  In my view, the case is distinguishable and of little assistance.  Break and enter to a dwelling house is substantially more serious than a break and enter to a commercial premise.  Support for this view is noted by the fact that the maximum sentence for break and enter to a dwelling house is life imprisonment; in contrast, the maximum sentence for break and enter to commercial premise is 10 years.

[49]        Having presided over several matters involving break and enters to commercial premises, I am aware that sentences range from a suspended sentence to low federal penitentiary sentences.

[50]        In the circumstances of this case, the sentence imposed must protect society and contribute to the respect for the law while maintaining a just and peaceful society.  It is my view the sentences imposed will denounce and deter while assisting Mr. Lam with his continued rehabilitation.

[51]        These objectives will be achieved by imposing a prison sentence for the offences of robbery and breach of recognizance followed by probation for the break and enters.  The intention behind the probation is to a small degree, denounce and deter, while closely supervising and controlling Mr. Lam’s long term rehabilitation. 

[52]        In arriving at an appropriate sentence, I am mindful the nature of the break and enters committed by Mr. Lam would typically attract a custodial sentence, however, in the unique circumstances of Mr. Lam’s rehabilitative efforts coupled with the mitigating factors I am of a view that the probation imposed (including strict conditions) will protect the public while achieving the purpose and principles of sentencing.

[53]        After considering all of the facts and circumstances I impose the following sentences: