R. v. Bird

2006 BCSC 2088 R. v. Bird IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Bird, 2006 BCSC 2088 Date: 20060320 Docket: 76569-3 Registry: Kamloops Regina v. Dion Marlon Bird Before: The Honourable Madam Justice D. Smith Oral Reasons for Sentence March 20, 2006 Counsel for Crown: I. Currie Counsel for Accused: J. Hogg, QC Place of Trial/Hearing: Kamloops, B.C. [1] THE COURT: Dion Bird, age 20, has pled guilty to arson, having disregard for human life, mischief to property over $5,000 and taking part in a riot. [2] The circumstances of the riot were extensively canvassed by myself in reasons for sentence of four of 13 offenders who participated (see R. v. Anderson 2005 B.C.S.C. 1681). Mr. Bird's involvement in the riot is not at the high end of the range of activities that have attracted federal sentences of about four years for the instigators or leaders of the riot. Nor was it at the low end of the range that attracted a sentence of 12 months for one offender. Mr. Bird's activities appear to fall within that middle range that for the most part has attracted a range of sentence from between 15 months to 36 months. [3] In this case, the Crown seeks a sentence of 30 months. The defence seeks a sentence of 26 months. Also at issue is the period of time for which Mr. Bird should receive double credit for his pre-sentence custodial time. [4] The court is advised by defence counsel that Mr. Bird's statutory release date would have been June 6, 2005, but for these offences. At the time he was serving a 15-month sentence. After this offence Corrections revised that release date to August 27, 2005, although his warrant expiry date on the earlier sentence would not have been until sometime in November. [5] Reviewing the surveillance footage of Mr. Bird's involvement appears to indicate that he was not very involved at the outset but appeared to be wandering around in some sort of aimless fashion. After a few minutes, however, he became involved in what has been suggested as a form of "mob mentality." At the same time his actions thereafter were focussed and clearly intended to harm the security staff who were holed up inside the staff office and thereafter the washroom. [6] Aggravating circumstances include repeatedly throwing objects at the staff office Plexiglas window and the door, including a table and other pieces of furniture, kicking the door to the staff office multiple times, and moving objects away from the front of the staff office, which appeared to clear a way for others to start a fire in that area. Mr. Bird also fuelled the fire by throwing a towel and blanket into the fire, and took steps to obscure one of the surveillance cameras by covering it with a paper towel. [7] Mitigating circumstances include his guilty plea on this date and the fact that he was not an instigator. [8] His criminal record is extensive for one so young. [9] In short, his circumstances are very similar to those surrounding Mr. Cabral, another participant in this riot, who pled guilty and received an effective sentence of 26 months. Counsel for the Crown and the defence agree that Mr. Cabral provides the closest comparator, in terms of circumstances and background, to Mr. Bird. Although the circumstances of each of their involvements in the riot are not identical, in conducting this balancing act, which the court must do in determining an appropriate sentence, I am satisfied that generally speaking he falls within the range of sentence that Mr. Cabral received. [10] Applying s. 718.2(b), I am satisfied that Mr. Bird should receive a similar sentence to Mr. Cabral. Each of their actions in the riot was comparable. Mr. Cabral's record of 24 convictions is slightly higher than Mr. Bird's. It is unclear, but the Crown alleges 19 prior convictions; defence agrees to 12. Mr. Cabral was serving a 12-month sentence before this offence and Mr. Bird a 15-month sentence. [11] In all of the circumstances, I am satisfied that an appropriate sentence for Mr. Bird is 26 months. [12] The next issue is how much credit he should receive for the time he has served in custody before his guilty plea. I am satisfied that but for these offences, his statutory release date would have been June 6, 2005. The time he has served since that date is therefore attributable to these offences. Crown points out that he did take a program at the -- was it Vancouver Regional Correctional Centre? [13] MR. HOGG: Vancouver -- that was actually, I think at -- [14] THE COURT: Vancouver Island? [15] MR. HOGG: Yes, Regional Correctional Centre. [16] THE COURT: Right, on Wilkinson Road? [17] MR. HOGG: Right. [18] THE COURT: However, that was done between March and April 2005, just a couple of months after these offences. After June 6, 2005 he was placed in segregation with little opportunity to participate in any program. In my view the double credit should start from June 6, 2005. [19] In the result, Mr. Bird has a further eight months to serve from today's date. It should be noted, however, that the effective sentence is 26 months and the double credit is for nine months' pre-sentence custody, which is 18 months, for a net sentence of eight months. [20] There shall also be an order that Mr. Bird provide a DNA sample. [21] MR. HOGG: Stay the other count? [22] THE COURT: I think that's four eighty -- for the arson? [23] MR. CURRIE: Yes, for the -- I wonder if I can just confirm. I think that's the right -- [24] THE COURT: 485.051(b)? [25] THE CLERK: While he's checking, My Lady, I just want to confirm . . . dealt with previously? [26] MR. HOGG: No, that's what I say, Count 1 should be stayed. [27] THE CLERK: Thank you. [28] MR. HOGG: But I can't do that. I'd like to. [29] MR. CURRIE: If I can just have a moment to deal with this, first. [30] THE COURT: Let's deal with this. [31] MR. CURRIE: Yes, it is a secondary designated offence. I would ask that there be a DNA provision. [32] THE COURT: Yes. [33] MR. HOGG: Where are you at? [34] THE COURT: 485.051(b). I think that's the section. [35] MR. CURRIE: It's a secondary designated offence, as they're set out at 487.04. [36] THE COURT: And you are seeking a DNA -- [37] MR. CURRIE: And I am seeking the DNA, under 487.051. [38] THE COURT: Mr. Hogg, I have made those orders in the past for the other offenders I sentenced, even though it is -- [39] MR. HOGG: Yeah -- no, I'm not going to try to cross swords on that. I was just trying to -- I was just correlating my Code with his and I've got -- [40] THE COURT: Actually, I think I quoted it wrong in my decision. It is -- you are saying it is 487 point -- [41] MR. CURRIE: No, I think you were right, My Lady. That is just the definition of secondary offences under 487.04. [42] THE COURT: Oh, but the actual order is made under 485? [43] MR. CURRIE: 487.051, in this case (1)(b) [44] THE COURT: I was wrong. I said 485 in your reasons, but I am sure everyone understands. It is 487.051(1)(b). There will be an order requiring Mr. Bird to provide a DNA sample. [45] And there will be also an order prohibiting him from possessing any firearms or weapons, for a period of ten years, upon his release from custody. [46] MR. CURRIE: My Lady, the maximum penalty with respect to Count 4 is 24 months. I wonder if -- [47] THE COURT: That is right, so that will be -- the sentence will be 26 months on Count 2, and let us say 20 months on Counts 3 and 4, those to be served concurrently, but in total consecutive to any sentence he was serving. [48] MR. CURRIE: At this point, he's not serving, so it doesn't need to be consecutive, but -- [49] THE COURT: Yes, okay. So those are concurrent. [50] MR. CURRIE: Yes, or for an effective eight-month -- at this point, eight months is remaining. [51] THE COURT: Right. [52] MR. CURRIE: Thank you. And, My Lady, I would ask that there be a stay with respect to Mr. Bird only, on Count 1, and that is -- are all the charges facing him on Indictment 765695 [sic]. I don't know if there's any other charges outstanding against Mr. Bird. [53] THE COURT: That was -- yes, Counts 5 and 6 were on Mr. Johnson, so there will be a stay on Count 1. [54] MR. CURRIE: Thank you. "D. Smith J."