IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Derek David Allenby pled guilty to possessing a prohibited firearm contrary to section 95(1) of the Criminal Code, R.S.C. 1985, c. C-46. The Crown seeks a custodial sentence while counsel for Mr. Allenby seeks a conditional sentence order followed by a lengthy probation order. The issues before the Court are, determining the appropriate length of sentence and, in case of a sentence of less than 24 months, the appropriateness of a conditional sentence order?

[2]         On February 28, 2021, the police responded to a report of a vehicle that had left the roadway and entered a water-filled ditch. On arrival, the police located Mr. Allenby who was standing on the roadway near the vehicle. He identified himself to the police as the driver and he proceeded to provide a false name and date of birth.

[3]         After various computer checks, the police identified Mr. Allenby, and in doing so, they learned he was a prohibited driver. The police arrested Mr. Allenby for driving while prohibited and when they searched him they found a 12-gauge buckshot shell in his jacket pocket. He was then arrested for possessing ammunition contrary to his prohibition order and for obstructing a police officer.  

[4]         Shortly after Mr. Allenby’s arrest, a local resident contacted the police reporting that Mr. Allenby had concealed items in her yard after the collision but before police arrival. The police investigated the resident’s report and learned the following.

[5]         Just after the vehicle entered the ditch, Mr. Allenby knocked on the resident’s door asking that a tow truck be called. The resident agreed and after closing her door, she noticed Mr. Allenby entering her yard, walking around her house and then leaving. Sometime later, the resident took her dog into her yard and she discovered a brown blanket that had not previously been there. The resident’s CCTV footage was examined and it showed Mr. Allenby entering the yard carrying a brown blanket, then going out of camera view and coming back into view without the blanket.

[6]         Police recovered the blanket and concealed inside was a bulletproof vest and a loaded, 12-gauge, sawed-off shotgun.

[7]         Mr. Allenby is 42 years old. His paternal grandmother was of Indigenous heritage, and a member of the Neskonlith First Nations. To escape the Sixties Scoop, she ran away from her community; and ultimately married Ken Allenby, a Caucasian from New York, and through their marriage, Mr. Allenby’s father was born and through this lineage, he is a non-status member of the Little Shuswap Lake First Nations.

[8]         Mr. Allenby was born and raised in the Lower Mainland and he enjoyed a loving and supportive environment with his grandparents doting on him. His parents did not drink and while raising Mr. Allenby they focused on making him a strong Christian.

[9]         Mr. Allenby’s life was without issues until he was approximately 12 years old. At that time, he attended a summer baseball camp and while there, the coach gave him drugs and sexually assaulted Mr. Allenby. When the camp was over, the coach dropped Mr. Allenby at his home and informed his parents that Mr. Allenby was using drugs.

[10]      By the time Mr. Allenby was 14 years old, he was regularly using drugs, which caused his parents to kick him out of the family home. Thereafter, he lived on the streets and at the age of 19, he received his first custodial sentence. While in custody, Mr. Allenby attended various treatment programs and on release, he occasionally worked for their family business. Until his recent incarceration he had been working for the business.

[11]      In terms of education, Mr. Allenby struggled with ADHD and as a result his parents supported him by hiring a tutor. Mr. Allenby’s drug use interfered with his schooling and he dropped out at age 16. He completed his grade 12 equivalency and has an interest in studying golf course management.

[12]      As indicated, Mr. Allenby began using drugs at a young age. He started with crystal methamphetamine and he evolved to using opioids. He has attended various treatment facilities and the skills he learned have assisted him in maintaining his sobriety for varying periods. At the time of the January 19, 2024 sentencing hearing, Mr. Allenby has been involved in Narcotics Anonymous, and a letter of support from his sponsor reported that Mr. Allenby was committed to remaining drug free.

[13]      This Court has had the benefit of letters from Mr. Allenby’s parents, his sister, his partner, his Narcotics Anonymous sponsor and Dr. A. Stevens, a psychologist who has worked with Mr. Allenby. In reviewing these letters, I observe all have witnessed Mr. Allenby’s struggles and his efforts at becoming drug free. They also speak to his positive character traits and they describe their willingness to support him. As for Dr. Stevens, she confirms she has been treating Mr. Allenby for severe PTSD. She also noted that he volunteers in the community; he is staying away from negative influences; he is involved in drug counselling, and that he has been stable for an extensive period of time.

[14]      Dr. Stevens also expressed a belief that Mr. Allenby is not a risk to re-offend. I place little weight on this belief. There is no information regarding Dr. Stevens’ qualifications or information that she may have had regarding specifics of Mr. Allenby’s previous offences or relapses. I also observe there is no information indicating what factors Dr. Stevens considered in arriving at the conclusion that Mr. Allenby is not at risk of re-offending.

[15]      As for Mr. Allenby’s criminal record, I take judicial notice of the link between the historical mistreatment of Indigenous persons and Mr. Allenby’s criminal record. The record begins September 2001, with Mr. Allenby’s last offence in July of 2017. The record contains offences for theft, flight from police, possession of drugs, assault, break and enter, robbery, assaulting a police officer and weapons related offences. His record also discloses a number of breaches in relation to conditional sentence orders and convictions for failing to comply with recognizances. Mr. Allenby’s longest custodial sentence was two years. At the time of the instant matter, he was bound by two orders prohibiting him from possessing ammunition and firearms.

[16]      On March 5, 2024, three days before the pronouncement of his sentence on this matter, the police stopped Mr. Allenby and while interacting with him they located small bags of drugs believed to be crack cocaine and fentanyl.  Also located was a knife, and six rounds of nine millimetre ammunition. Possession of the ammunition was in violation of Mr. Allenby’s two prohibition orders and condition 4 of his March 2021 release order. These events led to Mr. Allenby’s arrest, revocation of bail, and ultimate detention.

[17]      The above events are relevant to the instant matter because it provides insight into the strength of Mr. Allenby’s rehabilitative progress, his willingness to turn to his support system, and informs that his current circumstances failed to prevent a regression.

[18]      A Gladue report was prepared for sentencing purposes. The report provides background with respect to Mr. Allenby’s ancestry and his connections. The report notes Mr. Allenby is not currently connected to his culture and he only has memories of stories told by family members. Mr. Allenby expressed to the writer of the report that he wants to know more about his father’s family, including the Shuswap Nation history and culture.

[19]      The report informs that Mr. Allenby and his family have experienced the following unique and systemic background factors:

[20]      The report concludes by documenting various healing plans and restorative justice considerations that would benefit Mr. Allenby, including; Thuy Na Mut First Stage Program; Kwunatsustul Second Stage Program, and an online golf club operation certification program.

[21]      The Crown seeks a jail sentence of 30 – 36 months; a DNA order; a lifetime firearms prohibition, and a forfeiture order. In support, the Crown highlights the local increase in gun violence and thus the need for denunciation and deterrence. In support the Crown relies on R. v. Kachuol, 2017 BCCA 292; R. v. Mills, 2021 BCCA 86; R. v. Guha, 2012 BCCA 423; R. v. Harms, 2018 BCSC 1599; and R. v. Alec, 2022 BCPC 268.

[22]      Counsel for Mr. Allenby argues that a conditional sentence order followed by a lengthy period of probation is a just and appropriate sentence. Counsel submits Mr. Allenby’s community support, his rehabilitative progress, the gap in his record and his Indigenous heritage justifies departing from the sentencing range and supports the sentence proposed.

[23]      Counsel also points out that a carefully crafted conditional sentence order can achieve the requisite degree of denunciation and deterrence while supporting Mr. Allenby’s rehabilitation. Counsel relies on R. v. Proulx, 2000 SCC 5; R. v. Mero, 2021 BCCA 399; R. v. Sellars, 2018 BCCA 195; R. v. Timmers, 2023 BCPC 199; R. v. McKay, 2020 BCPC 139; R. v. Berry, 2021 BCPC 165; R. v. Collins, 2023 ONSC 5768; R. v. Marier, 2023 ONSC 5194; R. v. Ramos, 2023 ONSC 1094; R. v. Baldwin, 2021 ONSC 7025; R. v. Moses, 2022 ONSC 332; R. v. Beharry, 2022 ONSC 4370; R. v. Hassan, 2017 ONSC 4570; R. v. Saunders, 2022 BCSC 2118; R. v. Desmond-Robinson, 2022 ONCA 369.

[24]      Sections 718 – 718.2 of the Criminal Code sets out the purpose and principles of sentencing.

[25]      Section 718 outlines the fundamental purpose of sentencing and also lists several sentencing objectives that contribute to achieving the overall purpose of sentencing. Section 718 provides:

[26]      Pursuant to section 718.1, a fundamental principle of sentencing is proportionality. The section states:

[27]      Additional sentencing principles are found in section 718.2. Relevant to the instant matter are:

[28]      In Kachuol, Justice Dickson observed that, the criminalization of unlawful firearm possession is to ensure public safety, express society’s condemnation and punish offenders. Thus, and as per Justice Dickson, where possible, courts should strive to achieve these goals by imposing sentences for firearm offences that give priority to denunciation and deterrence (see para. 25).

[29]      With the above in mind, the sentence this Court imposes must denounce and deter Mr. Allenby’s conduct generally and specifically. Simply, the nature of the weapon (a loaded, sawed-off shotgun), the circumstances of the offence and Mr. Allenby’s related record demands a sentence that gives priority to these objectives.

[30]      Mr. Allenby’s rehabilitation is a further relevant sentencing objective. This is because he has demonstrated some rehabilitative prospects. In this regard, I observe, his efforts since the offence, his community support and some of the gaps in his offending behaviour. That said, I observe, he has experienced recent relapses, despite having extensive support. I also note that previous interventions by the justice system have not rehabilitated, rather, they have achieved transient success. Accordingly, I conclude, Mr. Allenby’s rehabilitation, although pertinent, assumes a lesser role than that of denunciation and deterrence.

[31]      The seriousness of Mr. Allenby’s offence is measured by observing the maximum available penalty for his offence is 10 years imprisonment.

[32]      As for Mr. Allenby’s offence, there is little information regarding his motive but for his claim of a drug induced belief that he was being targeted by others. That said, I observe his actions required clear and decisive steps, including obtaining the shotgun, obtaining the ammunition, loading the shotgun, hiding it in a blanket and then concealing it in a yard in an obvious and calculated effort to avoid discovery by the police.

[33]      Despite the above, I recognize the impact of colonization and the systemic factors that have impacted Mr. Allenby generally and specifically. The impact includes loss of cultural identity, loss of community connection, the intergenerational effects of Indian Residential School, violence and abuse through generations, and trauma experienced by Mr. Allenby. As such, and given his unique personal circumstances, I conclude his moral culpability is somewhat attenuated.

[34]      The following circumstances are aggravating:

[35]      The following circumstances are mitigating:

[36]      The cases referenced by counsel provide guidance and assist with respect to the applicable principles. That said, sentencing is a highly individualized exercise, where the sentence imposed must be tailored to the gravity of the offence, the offender’s level of culpability and the harm caused: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 80.

[37]      Additionally, and importantly, when looking at sentences imposed for similar offences, a fit sentence will not be achieved, in the circumstances of an Indigenous offender, by relying on authorities involving a non-Indigenous offender: R. v. Ipeelee, 2012 SCC 13, at para. 86.

[38]      As for sentencing ranges, they are not binding, rather, they provide guidance and circumstances may justify imposing a sentence that is above or below the documented range: R. v. Lacasse, 2015 SCC 64, at paras. 57-60.

[39]      Turning to the applicable range, the sentencing range for section 95(1) offences is imprisonment for 30 months at the low end and moving up to seven-and-a-half years: R. v. Holt, 2015 BCCA 302, at para.18. A factor that impacts where on the range a sentence falls is whether the firearm was possessed as a tool of the offender’s criminal trade versus possessed for a less dangerous reason: R. v. Motevalli, 2019 BCSC 162, at para. 6.

[40]      In Mero, the offender’s appeal of concurrent eight-month and 40 month sentences for offences related to drug trafficking and weapons was allowed. Substituted was a two year less a day conditional term of imprisonment for the weapon offence and for the drug offence, the passing of sentence was suspended and the offender was placed on probation for 12 months.

[41]      In the above case, the gun was located when the police executed a search warrant at the offender’s home and during the search they located a handgun, ammunition, 23 grams of heroin, “score sheets”, and a bulletproof vest. The offender was Indigenous, 34 years old, he had a dated record and the sentencing judge treated him as a first time offender. The offender had experienced a difficult upbringing, he had a supportive family, he suffered from a serious lung disease, he started using substances at a young age; despite this, he had previously managed a 12-year period of sobriety. At the time of the offence, the offender was using drugs, however, at the time of sentencing he had been drug and alcohol free for several years.

[42]      In allowing the appeal, the Court held that the sentencing judge did not have sufficient information related to the offender’s heritage and therefore failed to adequately consider his moral culpability. In considering an appropriate sentence, Justice Marchand noted the long lasting turnaround in the offender’s life, that he was free from drugs and alcohol, and that he had taken positive steps to be in a position to be a parent.

[43]      In Saunders, the offender received a two-year conditional sentence of imprisonment followed by two years of probation for possession of a prohibited weapon. The offence involved the offender arming herself with a sawed-off shotgun in order to protect herself from Ms. Taylor who had stated that she was “coming after” the offender. On the night of the offence, Ms. Taylor and another person entered the offender’s residence, confronted her and sprayed the offender with pepper spray. The offender responded by discharging the shotgun, striking Ms. Taylor.

[44]      The offender was 31 years old, Indigenous, she was raised in an abusive home, her father was addicted to heroin, she started using drugs at a young age, she had five children, she had a nine-year gap in her criminal record, and she hoped to attend a residential treatment centre in order to treat her drug addiction. On imposing sentence, the sentencing judge concluded that the offender’s progress had been exceptional, that the offender’s moral culpability was reduced, and that the offender had rehabilitative potential.

[45]      In Timmers, the offender pled guilty to possessing a loaded firearm and psilocybin for the purpose of trafficking. The offender was 61 years old, Indigenous and, because of the Sixties Scoop, he had been adopted by a non-Indigenous family. He experienced bullying, racism, and abuse. He finished high school and worked as a carpenter until he was injured at work. He was an alcoholic who stopped drinking and maintained his sobriety for 25 years. At the time of sentencing, he had completed a university course and planned on working toward a degree. On imposing a conditional sentence of imprisonment Judge Sacca commented at para. 54:

[46]      In Desmond-Robinson, the offender’s appeal was allowed and a conditional sentence of imprisonment was imposed. In granting the appeal, the Court concluded the sentencing judge erred in principle by holding that a conditional sentence was beyond the range of sentences for the offence of possessing a prohibited firearm. In considering an appropriate sentence, the Court observed the offence was out of the offender’s control and reflected systemic racism and therefore the offender’s culpability was diminished. The Court also noted the offender had completed his schooling, he was employed, he had not been in any further trouble,he had become a parent, and he had nine months credit owing to restrictive bail.

[47]      In Hassan, the offender received a two-year conditional sentence of imprisonment. The significant distinguishing features from Mr. Allenby include: the offender was youthful; he had been on bail without incident for approximately three years, and all evidence showed he had changed his life by fully embracing his rehabilitation. Specifically, he severed negative associations; he volunteered, and he became a valued and contributing member of the community.

[48]      In Baldwin, part of the rationale for imposing a conditional sentence order was the negative impact that the pandemic was having on inmates.

[49]      In Alec, the offender was arrested in relation to a drug investigation and during his arrest he informed the officers that he was in possession of a firearm. The offender was convicted after trial and he received a four-and-a-half year custodial sentence. At the time of the offence, the offender was bound by a lifetime firearms prohibition and he was breaching his release order. The offender was 31 years old, Indigenous, he had 50 previous convictions including convictions for firearms and violence, he had heart issues and a form of cancer.

[50]      In Mills, the offender’s appeal of a six-year sentence imposed after he was convicted of possessing a handgun in a vehicle was dismissed. The offender was 65 years old; he had strong community support; he had a substantial record containing convictions for kidnapping, aggravated assault, unlawful possession of explosives, driving offences, and possession of a firearm. At the time of the offence the offender was bound by a prohibition order.

[51]      In Kachuol, the Crown’s appeal of a 23-month conditional sentence order was allowed, and the Court substituted a three-year jail sentence. The offender was charged after the police located a loaded handgun in his vehicle. The offender was prohibited from possessing firearms at the time, was 23 years old, he had community support, he was helping his mother, and shortly before sentencing, he was attacked resulting in a traumatic brain injury and weakness to his arm and leg. In considering the matter, the Court of Appeal concluded the sentencing judge erred in failing to characterize the offender’s conduct as a true crime. In considering an appropriate sentence, Justice Dickson confirmed public safety necessitated that denunciation and deterrence be the primary sentencing objectives for offences involving firearms. Ultimately, the Court concluded that the sentence imposed was a marked departure resulting in an unfit sentence.

[52]      In Guha, the Crown’s appeal of a global sentence of three years for possessing a loaded restricted weapon, an oversized magazine, and carrying a concealed weapon was allowed and the Court imposed a global sentence of six years for the weapons offence. The offender was charged after he was stopped for a traffic violation and during the interaction the police located a loaded handgun in the offender’s waistband. The offender was 27 years old, he had drug convictions, a weapons prohibition, and he was on bail at the time of the offence. Ultimately, the Court concluded the sentence imposed was unfit.

[53]      Sections 718.2(d) and 718.2(e) of the Criminal Code are often referenced as codifying the principle of restraint. This principle reflects the requirement that a custodial sentence should only be imposed when required and, if so, that the lightest jail sentence that is reasonable be imposed: R. v. Bosco, 2016 BCCA 55, at para. 35.

[54]      I find Mr. Allenby possessed the shotgun for true criminal purposes. My conclusion is based on: the shotgun was originally in his car, it was loaded, he had extra rounds of ammunition, and he had a bulletproof vest. As such, and given the danger to the community, the sentence imposed must denounce and deter Mr. Allenby and others.

[55]      Despite the above, sporadic breaks in Mr. Allenby’s offending, combined with his generally good performance while on bail, demands that some consideration be given to his rehabilitation.

[56]      I find that Mr. Allenby’s offence was serious. As for his moral culpability, I find the historical mistreatment of Indigenous persons and the consequences experienced by Mr. Allenby serve to reduce his culpability.

[57]      On the cases provided, I note many of those cited by counsel for Mr. Allenby involve circumstances where the offender had made significant and sustained changes in their lives.

[58]      Applying all of the above, I conclude that Mr. Allenby’s reduced culpability, combined with the aggravating and mitigating factors, as well as his rehabilitative prospects, justify a 30-month custodial sentence less credit of 60 days. Were it not for Mr. Allenby’s family support and slight prospect of rehabilitation, I would be inclined to impose a lengthier sentence.

[59]      As for counsel’s submission that a conditional sentence order would be appropriate, I have considered it and in doing so I appreciate a restrictive order can achieve a significant degree of denunciation and deterrence and support Mr. Allenby’s rehabilitation. I also appreciate the importance of addressing the overrepresentation of incarcerated Indigenous persons. Nevertheless, in Mr. Allenby’s circumstances, namely, his previous conditional sentence order breaches, his record, and his latest relapse, suggest that the public would be at risk were he permitted to serve his sentence in the community.

[60]      My conclusion regarding risk to the community is further supported by Mr. Allenby, despite having the support of a counsellor and a Narcotics Anonymous sponsor, combined with a new relationship, living at his parents’ home and having a job; he resorted to drug use, drug possession and the unexplained possession of ammunition. This scenario indicates to me that he is fragile and there is a strong risk that he will regress and commence to a renewed offending cycle.

[61]      Pursuant to s. 487.051 of the Code, I authorize the taking of a bodily substance for the purpose of the national DNA databank.

[62]      Pursuant to s. 109(3) of the Code, Mr. Allenby is prohibited from possessing any firearm, a prohibited firearm, a restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for life.

[63]      Mr. Allenby has sporadically worked in the family business, with this in mind, I am confident that when he completes his sentence he will be able to pay the victim fine surcharge. Accordingly, it must be paid on or before April 1, 2027.

[64]      The firearm, ammunition and bullet-proof vest are forfeited to the King for destruction.