IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. McCarthy pled guilty to robbery and using an imitation firearm while committing the indictable offence of robbery. A sentencing hearing was held and the court has had the benefit of a pre-sentence report, a psychological assessment, case authorities, letters of support, and able submissions of counsel.

[2]           The Crown seeks a sentence of 2 years for the robbery and pursuant to s. 85 (3) (a) of the Criminal Code, the mandatory minimum of 1 year to be served consecutive to any other sentence. The Crown recognizes the totality principle and argues that a fit sentence is a sentence of 2 years less enhanced credit of 128 days for time served resulting in a sentence in the range of 18 to 24 months followed by a lengthy period of probation.

[3]           The defence argues the circumstances justify a 6 months sentence for the robbery and 1 year consecutive for the use of an imitation firearm; however and owing to the totality principle, the sentence should be reduced to 1 year plus probation for 3 years.

[4]           On March 2, 2018, Mr. McCarthy entered a pharmacy and he approached 2 staff members. Mr. McCarthy pointed a black handgun at them and he directed them to crawl down, put their hands up, and unlock the safe.

[5]           One of the staff members told Mr. McCarthy that the safe was unlocked. Mr. McCarthy then told the staff member to remove all of the narcotics from the safe, however, the staff member was too frightened to comply, so Mr. Chan, the pharmacist, took over. Mr. Chan complied with Mr. McCarthy’s demands and filled a bag with narcotics from the safe. While this was going on Mr. McCarthy was saying if anyone did anything or called the police that someone would get hurt. Mr. McCarthy also said, “I will shoot you if you touch the alarm. I will shoot your if you don’t get on the ground. I will shoot you if you don’t put your hands in the air.”

[6]           Mr. McCarthy then asked about the surveillance system’s hard drive. Neither, Mr. Chan or the staff member knew where the hard drive was located. Mr. McCarthy then asked where the rear exit was and he fled out of the rear of the business.

[7]           At the commencement of the robbery, Mr. McCarthy had a mask on the top of his head and during the robbery he lowered it to cover his face. Obtained in the robbery were 2,941 products, comprising of, Hydromorphone, Clonazepam, Codeine, Percocet, Ritalin, Fentanyl and others. The value was over $2,000.00.

[8]           Counsel for Mr. McCarthy explained his client committed the robbery in order to commit suicide. Specifically, upon receiving the drugs, Mr. McCarthy went to his residence and consumed all of the drugs, and fell into a deep sleep.

[9]           Mr. McCarthy is 41 years old. He was raised in Surrey, BC. He did not suffer abuse and his parents were loving. While growing up Mr. McCarthy witnessed turbulence in his parents’ relationship. They ultimately divorced when Mr. McCarthy was 25 years old.

[10]        Mr. McCarthy has had a long-standing drug addiction. He attributes his drug addiction to an incident that occurred when he was 17 years old whereby a police officer punched him. Although not injured, Mr. McCarthy sees this event as the start of his drug activity.

[11]        As for his drug use, Mr. McCarthy was using heroin by the time he was 18 years old. Thereafter, he attended treatment and he reached periods of sustained abstinence only to have life events disrupt his sobriety. Such events that triggered his drug use include, a job loss, a break-up, the loss of his dog, and the failure of his small grow business.

[12]        Despite the setbacks, Mr. McCarthy regularly returned to treatment. In this regard, he attended treatment when he was 22 and thereafter in 2005 and 2006. He has also received treatment from Dr. Sakakibara, an addictions doctor.

[13]        Since June of 2018, Mr. McCarthy has been a resident at Reaching Out Supportive Recovery Society. Their Executive Director, Mr. Cavanagh, prepared a letter in support of Mr. McCarthy wherein he commented on Mr. McCarthy’s change in thinking, his advancement in the program and his motivation to make positive changes.

[14]        Letters were also filed from Travis Heath and Owen Matlew, residents of Reaching Out Supportive Recovery Society, and they speak to Mr. McCarthy’s caring and generous nature and his serious approach to recovery.

[15]        Janice Nicol, Concurrent Disorder Clinician, at Vancouver Mental Health and Substance Use Clinic also provided a letter. In her, letter Ms. Nicol states:

[16]        From the above, it is clear that Mr. McCarthy is motivated to manage his addiction and he has achieved sustained periods of success only to have his sobriety compromised by life challenges. In essence, his sobriety (like many) is fragile.

[17]        As for education and employment, Mr. McCarthy has completed his grade 11 studies and he has taken some marketing courses at BCIT. He has his Level 3 Occupational First Aid and a forklift operator’s certificate. Mr. McCarthy worked at BCIT from 2008 to 2014, however, he lost his employment because he was missing work in order to pick up his methadone. Mr. McCarthy has been unemployed for 3 years and he is on disability.

[18]        Mr. McCarthy plans to pursue his Construction Safety Officer Certificate and to start his own business. Areas that appeal to him include licensed cannabis growing and the dog kennel business.

[19]        According to the psychological assessment, Mr. McCarthy does not suffer from a mental illness. Despite this, his personality makes it difficult for Mr. McCarthy to abstain from drugs. In this regard, Dr. Brown writes:

[20]        As for recommendations, Dr. Brown suggests:

[21]        Mr. McCarthy’s criminal record begins in 1999 and it contains 15 convictions. He has 11 theft convictions and convictions for flight from a police officer, improper storage of a firearm, and robbery. Of note is, Mr. McCarthy has a 9 year gap in his criminal record; (September 2006 to October 2015).

[22]        The fundamental principles of sentencing are in s. 718 of the Criminal Code:

[23]        Section 718.1 of the Code states that the fundamental principle of sentencing is:

[24]        Proportionality is the sine qua non of a just sentence. It is where the sentence imposed reflects the seriousness of the offence balanced against the degree of moral blameworthiness (R. v. Ipeelee, 2012 SCC 13, at paras. 36-37).

[25]        Recently, in R. v. Carte, 2017 BCSC 2421 Madam Justice DeWitt-Van Oosten commented on achieving a proportionate sentence. At paragraph 65, she observed:

[26]        Section 718.2 of the Code contains additional principles. The relevant portions read:

[27]        In the instant case, I conclude that denunciation and deterrence are the primary sentencing objectives with some focus attributable to Mr. McCarthy’s rehabilitation. As for denunciation, it is incumbent upon this court to express society’s condemnation for Mr. McCarthy’s conduct.

[28]        As for deterrence, those that work with within the pharmaceutical industry are deserving of protection. Such protection is partially achieved by demonstrating that robberies committed against vulnerable pharmaceutical employees will result in stiff penalties.

[29]        I have given weight to Mr. McCarthy’s rehabilitation because of his demonstrated motivation, his measured success, and the 9 year gap in his criminal record which signifies an ability to conduct himself in a pro-social manner.  

[30]        The offences committed by Mr. McCarthy are serious. Specifically, while possessing an imitation firearm and while wearing a mask (at times), he threatened to shoot innocent pharmacy employees. The maximum penalty for robbery is life imprisonment and the penalty for committing an indictable offence while armed with an imitation firearm is a mandatory minimum sentence of 1 year that must be served consecutive to any other sentence. These sentences reflect the seriousness of Mr. McCarthy’s offences.

[31]        Turning to Mr. McCarthy’s level of moral blameworthiness, I appreciate his actions were driven by his long standing drug addiction and his emotional state, however, I have difficulty accepting that Mr. McCarthy’s state was such that his moral blameworthiness was substantially reduced. I am of this view because, he was functioning to such a degree that he equipped himself with the items necessary for the robbery, he targeted the location, and if he was intent on taking his life, it makes little sense that he wanted to conceal his identity with a mask or by taking the surveillance recording.

[32]        The degree of planning is aggravating. Mr. McCarthy prepared by arming himself with an imitation firearm and a mask. He then targeted a pharmacy where he knew that the drugs were in the safe. Finally, he turned his mind to exiting at the rear and to removing video evidence from the surveillance system. Mr. McCarthy’s previous record for robbery is also aggravating. Lastly, the level of violence is aggravating. Mr. McCarthy pointed an imitation firearm at the employees, he had them crawl and he threatened to shoot them.

[33]        Mr. McCarthy’s guilty plea and genuine remorse are substantially mitigating. In this regard, he has saved the state the expense associated with a trial and he has saved the victims from being further traumatized by re-visiting the events. Also mitigating is Mr. McCarthy’s rehabilitative efforts. He is in a recovery house, he is working on his addiction and he has demonstrated a sincere motivation to control his addiction. Finally, Mr. McCarthy has the support of others and his pre-sentence report is positive.

[34]        With respect to the sentencing range for robberies involving violence and the factors to be considered, Madam Justice Ryan made the following comments in R. v. Brogan, 1999 BCCA 278, at paragraphs 10 to 11:

[35]        In R. v. Davidson, 2009 BCCA 485, the appellant’s 4 year robbery sentence was reduced to an effective sentence of 2 years. The circumstances of the offence are; the appellant entered a drug store, approached a clerk and pointed to what appeared to be a firearm that was tucked into his shorts. He then demanded that the clerk fill a bag with Dilaudid. The appellant was 25 years old and a drug addict. He committed the offence because he had been unable to obtain his methadone and therefore resorted to Dilaudid which is a synthetic form of heroine. The appellant had a lengthy criminal record, including a Youth Court conviction for robbery. The court held that the sentence of 4 years was unfit considering the relatively young age of the appellant, the possibility of rehabilitation, that his longest previous sentence was 9 months and the absence of aggravating factors such as, “...use of a disguise, use of actual violence, or commission of the offence while on probation or under court restraints.” [Para. 29].

[36]        I have also considered the Court of Appeal’s review of similar robbery cases in Davidson. Specifically, R. v. Gill, 2006 BCCA 127, R. v. Rosov, 2006 BCCA 276, R. v. Lackey, 1999 BCCA 549, and R. v. P.T.C., 2001 BCCA 473. Counsel for Mr. McCarthy relies on R. v. Ignacio, 2016 BCPC 225 and R. v. Marks, 2016 BCCA 480. 

[37]        In Ignacio, the offender was sentenced to a global sentence of 12 months and probation for 2 years. He was convicted after trial of 2 counts of robbery, 2 counts of committing an indictable offence while wearing a mask, and 2 counts of committing an indictable offence while using an imitation firearm. The offences involved the offender masking his face producing an imitation handgun and robbing an individual on the street. The second robbery involved the offender masking his face producing an imitation handgun and robbing a store of cigarettes and transit tickets. The offender was 20 years old, he did not have a criminal record, he was remorseful and his personal circumstances and his personality contributed to the offences.

[38]        In Marks, the offender’s appeal of a 12-month sentence was dismissed on the basis that the sentence was not unfit. The circumstances of the offence are, the offender entered a gas station, produced an imitation handgun, demanded money and threatened to shoot the victim. The offender pled guilty to robbery while armed with an imitation weapon. The offender was 18 at the time of the offence, his offence was driven by a desire to pay off drug debts, he had been on strict bail for 3 years and he had made significant efforts at turning his life around.

[39]        I have considered defence counsel’s sentencing position and despite a requirement to impose the least restrictive sanction that is appropriate in the circumstances, I conclude that the sentence purposed by defence counsel would not achieve the requisite degree of denunciation and deterrence. My view on this point is driven by the seriousness of the offence, the degree of responsibility, and the aggravating factors. I am also of the view that Marks and Ignacio are highly distinguishable in that both involved young first time offenders.

[40]        I acknowledge that the range of sentence for robbery with violence is between 2 and 9 years. I appreciate this sentencing range is not inflexible and there may be circumstances justifying departing from the range. I am of the view that Mr. McCarthy’s progress, prospects, and mitigating circumstances justify imposing a sentence that is below the range.

[41]        With the above in mind, I am of the view that a fit and appropriate sentence for the robbery is 14 months less time credit of 128 days thus leaving a balance of 299 days. Consecutive to the robbery sentence, I impose a sentence of 1 year for the offence of using an imitation firearm while committing an indictable offence. Thereafter, Mr. McCarthy will be on probation for 2 years. In my view the sentences imposed balance denunciation and deterrence while supporting Mr. McCarthy’s reintegration and rehabilitation.

[42]        Finally, I have considered the totality principle and in my view the total of the sentences imposed will not be crushing or disproportionate.

[43]        Keep the peace and be of good behaviour;

[44]        Pursuant to s. 109 of the Criminal Code, Mr. McCarthy is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substances for life.

[45]        The offence of robbery is a primary designated offence. I therefore order that a sample of your DNA be taken.