R. v. Kipp

2010 BCSC 584 R. v. Kipp IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Kipp, 2010 BCSC 584 Date: 20100407 Docket: X071546 Registry: New Westminster Regina v. Daniel Nicholas Kipp Before: The Honourable Mr. Justice Joyce Oral Reasons for Sentence Counsel for Crown: M.A. Huot Counsel for Defence: C.L. Bauman Place and Date of Trial/Hearing: Vancouver, B.C. April 7, 2010 Place and Date of Judgment: New Westminster, B.C. April 7, 2010 INTRODUCTION [1] On December 15, 2009, I convicted Mr. Kipp of attempted murder of Mr. Shane White, aggravated assault of Mr. Karl Vanderpol and possession of a prohibited or restricted firearm. I now have to sentence Mr. Kipp for those offences. CIRCUMSTANCES OF THE OFFENCES [2] The circumstances of the offences are set out fully in my Reasons for Conviction and can be described here quite briefly. [3] Mr. Kipp and Mr. White were involved in trafficking in crack cocaine and in the operation of crack houses from which the cocaine was sold. On the evening of November 16, 2007, Mr. White went in search of an individual whom he believed was spreading rumours that Mr. White was intending to rob certain crack houses. Mr. White took three associates with him: Mr. Daniel Roberds, Mr. Karl Vanderpol and Mr. Logan Bennett. [4] The four men ended up at a crack house in Surrey, British Columbia, that was being operated by Mr. Kipp, where they found Mr. Kipp, another man and a couple of young women. [5] Mr. White and Mr. Kipp got into an angry discussion. At one point during the heated exchange, Mr. Kipp was able to leave the crack house. Mr. White continued his discussions with Mr. Kipp's associate and eventually took approximately $4,000 worth of crack cocaine from him. At this point, Mr. Kipp's associate called Mr. Kipp using his cellular telephone to report the theft of the cocaine. [6] Mr. White and Mr. Roberds left the crack house where they joined Mr. Bennett and Mr. Vanderpol who were already outside and headed towards their car. [7] In the meantime, when Mr. Kipp left the crack house, he called a taxi driver whom he frequently used to chauffeur him around town. The taxi driver picked up Mr. Kipp outside the crack house and took him to Mr. Kipp's apartment where Mr. Kipp got a semiautomatic rifle. Mr. Kipp was then driven back to the crack house. The taxi stopped in a traffic circle outside the crack house, about 36 metres from Mr. White's car and Mr. Kipp got out of the taxi with the rifle. Mr. Kipp was about 100 feet away from Mr. White. [8] When Mr. Kipp called to Mr. White by his nickname "Hollywood," Mr. White turned and took a couple of steps towards Mr. Kipp, whereupon Mr. Kipp began shooting at him. [9] Mr. Kipp fired a total of 13 shots, four of which struck Mr. White. Mr. White was first struck in the right elbow. He then ran towards the car, seeking to use it as cover and was hit in the neck, right chest, and left shoulder. I concluded that Mr. Kipp shot at Mr. White intending to kill him. It is only by sheer chance that he did not succeed in realizing his intent. [10] Mr. Vanderpol, who also sought cover behind the car, was struck in his left hip region by one of the shots. I was not satisfied that Mr. Kipp intended to kill Mr. Vanderpol and consequently convicted him of aggravated assault of Mr. Vanderpol. [11] The handgun that is the subject matter of the firearms offence was found by the police in a kitchen cupboard of Mr. Kipp's apartment when they executed a search warrant that they obtained in connection with the investigation of the shooting incident. CIRCUMSTANCES OF THE OFFENDER [12] I do not have the benefit of a Pre-Sentence Report and have only limited information about Mr. Kipp's background. [13] Mr. Kipp was 20 years old at the time of these offences and is now 23. He is of aboriginal background but there was no evidence that he was raised in an aboriginal community. Mr. Kipp was neglected by his mother, who was a crack cocaine addict. It seems that the only adult figure who provided any kind of support during Mr. Kipp's early years was his mother's foster mother, a woman by the name of Terry [I was not provided with a last name] who resides in Chilliwack, British Columbia. Mr. Kipp regards Terry as his grandmother. [14] When Mr. Kipp was eight years old, he was placed with Terry and thereafter had only occasional contact with his mother. Mr. Kipp first had contact with his father when he moved in with his grandmother. His father died when Mr. Kipp was 10 years old. [15] During the time he spent with his grandmother, Mr. Kipp suffered physical abuse by her first husband, who was an alcoholic. [16] Mr. Kipp dropped out of school in grade 10 and got into trouble stealing cars. When he became a young adult, Mr. Kipp made friends with people who were dealing drugs and soon gravitated into the drug world himself. [17] I have been provided with a brief letter of support from Mr. Stan Reimer, who is Terry's second husband. Mr. Reimer states that his impression of Mr. Kipp is that he is loyal to his family and friends, is truthful, puts other people first, has a willingness to learn new things, has a good sense of humour and a quick wit. [18] I also have a letter of support from Mr. Cory Schaeffer, a university student who grew up with Mr. Kipp and thinks of him as a brother. Mr. Schaeffer believes that Mr. Kipp has never been anything but loving and civil to everyone. It appears that when he wrote this letter, Mr. Schaeffer did not believe that Mr. Kipp had committed these crimes. [19] I also have an affidavit from Mr. Chris Mills, who is a director of Launching Pad Addictions Rehabilitation Society, a member of a group called Soldiers of Sobriety, an Alcoholics Anonymous sponsor, and a former volunteer addiction worker at the Surrey Pre-Trial Centre. He is currently studying psychological counselling. [20] Mr. Mills met Mr. Kipp in December 2007 when Mr. Kipp was at the Surrey Pre-Trial Centre and attended an alcohol and drug addiction program at the institution. They soon became friends. Mr. Kipp appeared to Mr. Mills to be "a young kid starving for a place of belonging and feeling completely alone." He said that Mr. Kipp tried to project a tough guy image but was actually afraid. He believes that Mr. Kipp has come to accept that his life of drugs and alcohol has given him nothing but trouble and wants to distance himself from his old friends and former lifestyle. [21] Mr. Mills believes that Mr. Kipp has made good progress in taking responsibility for his actions and in recognizing that he must take charge of his life and develop a new network of persons who support a life different from that which he was living before his arrest. [22] While in custody, Mr. Kipp took courses towards his GED but was unsuccessful in the social studies portion of the examination and has not yet received GED accreditation. He took two other programs while at Surrey Pre-Trial Centre and I understand from material provided to me this morning that he has taken one further program since being transferred to North Fraser Pre-Trial. [23] Mr. Kipp has a significant criminal record as follows: · convictions on July 9, 2004, for mischief, theft, and possession of stolen property, for which he received a one-year probationary sentence; · a conviction on October 1, 2004, for breach of undertaking, for which he received a six-month probationary sentence; · convictions on May 20, 2005, for failing to comply with a youth sentence and theft, for which he received a sentence of intensive support and supervision; · a conviction on November 28, 2007, for possession of Ecstasy for the purpose of trafficking, for which he received a sentence of 30 days in jail in addition to two months spent in custody; · a conviction on October 16, 2006, for mischief, for which he received a probationary sentence of one year, · a conviction on July 4, 2006, for failure to comply with a youth sentence, for which he received a $100 fine; · convictions on August 3, 2007, for three counts of breach of probation and one count of breach of a recognizance, for which he received a sentence of 31 days in jail in addition to the 14 days he had spent in custody; · and a conviction on February 14, 2008, for possession of a prohibited weapon, for which he received a sentence of 14 days in jail. [24] This is the first conviction for a violent offence committed by Mr. Kipp and will be, by far, the longest sentence he has ever received. CRIMINAL CODE PROVISIONS Maximum and Minimum Punishment [25] Attempted murder where a firearm is used in the commission of the offence carries a maximum potential sentence of imprisonment for life and a minimum sentence of imprisonment for a term of four years pursuant to s. 239(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. [26] Aggravated assault carries a potential maximum sentence of imprisonment for a term of 14 years under s. 239(2). [27] Possession of a loaded prohibited or restricted firearm had a potential maximum sentence of imprisonment for a term of 10 years and a minimum punishment of imprisonment for a term of one year at the time of the commission of the offence in this case pursuant to s. 95(1). [28] Before discussing the authorities to which counsel have referred, I will set out the principles of sentencing that are codified in the Criminal Code. 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender ... (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. AGGRAVATING FACTORS [29] Mr. Huot submits that the following circumstances are aggravating factors that should be taken into account in sentencing Mr. Kipp: (a) a total of 13 shots were fired; (b) Mr. Kipp used a high-velocity semiautomatic rifle in attempting to kill Mr. White; (c) two victims were injured; (d) each of the victims sustained serious injuries that could have killed them, and Mr. White is left with a permanent disability because of the injury to his elbow; (e) there were other people in the immediate area who could have been wounded or killed; (f) the shooting took place in a residential area so that persons outside the immediate area of the shooting were also put at risk of harm; (g) there was a degree of premeditation in that at least 13 minutes elapsed during which Mr. Kipp went to his residence, selected his weapon of choice, and returned to the crack house; (h) while Mr. White had "ripped-off" Mr. Kipp's associate at the crack house, there was no immediate provocative behaviour on the part of Mr. White that prompted the shooting; (i) the shooting occurred by a midlevel drug trafficker protecting his illegal business and maintaining his reputation; and (j) the offences occurred shortly after Mr. Kipp was released from jail and while he was on bail on three matters, namely, the July 19, 2005, drug charge to which he pleaded guilty on November 11, 2008; the September 15, 2007, weapons charge to which he pleaded guilty on February 14, 2008; and the September 26, 2007, charge of possession of cocaine for the purpose of trafficking and possession of a loaded or prohibited firearm. The September 26, 2007, charges are outstanding. (One of the conditions of Mr. Kipp's bail was that he was not to possess any weapons.) [30] I agree that the foregoing are aggravating factors. Particularly significant, in my view, is the fact that Mr. Kipp was on bail and subject to court orders that prohibited him from possessing firearms or any other weapons. Likewise, the fact that Mr. Kipp chose to open fire from the roadway in a residential neighbourhood with a high-powered semiautomatic rifle in order to settle a score or demonstrate his position in the drug world is particularly aggravating. The bullets fired from the rifle were capable of going long distances and penetrating walls of buildings. The people in neighbouring houses were indeed put at significant risk by Mr. Kipp's actions. [31] Mr. Bauman seeks to downplay the circumstances that directly led to the shooting by suggesting that Mr. Kipp was pushed to respond, to some extent, by Mr. White's actions a few minutes earlier. He does not suggest that this provided any justification but that Mr. Kipp's actions were not as senseless as those of some of the offenders in the cases relied on by the Crown. [32] Mr. Huot submits the following circumstances surrounding the firearm offence are aggravating factors: (a) he was found in possession of the loaded revolver just days after committing the other offences; (b) the only purpose for possession of the revolver was to use it for the same kind of purpose that he had just used the rifle, that is, to commit a violent act in the context of his work in the drug industry; and (c) the fact that he was subject to a firearms prohibition under s. 109 as well as a bail condition not to possess firearms. [33] In my view, the significant aggravating factor in relation to the firearms offence is the fact that at the time Mr. Kipp committed this offence he was on bail and subject to the firearms and weapons prohibitions I have already mentioned. MITIGATING FACTORS [34] I find that Mr. Kipp's relatively young age is a mitigating factor. Prior to receiving a letter written by Mr. Kipp, which I received only this morning, I could see in this case and from him no evidence of any real remorse. In his letter, Mr. Kipp has apologized for his actions, though I have to say that the content of the letter appears to me to be perhaps as much an attempt to explain why he did what he did and the pressures he was under as opposed to showing true remorse. [35] Mr. Bauman submits that while Mr. Kipp did not plead guilty to the offence of attempted murder, he accepted responsibility for the shooting and that his defence was limited to the issue of whether or not he possessed the requisite mens rea. While that is so, Mr. Kipp's position did not, of course, preclude the need for a trial. [36] Mr. Bauman submits that it is also of significance that Mr. Kipp is of aboriginal background. The aboriginal status of offenders is given express attention by s. 718.2(e) of the Criminal Code. That subsection applies to all offenders and provides that as a general principle, imprisonment should be the penal sanction of last resort. It requires the court to consider all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders. [37] In R. v. Gladue, [1999] 1 S.C.R. 688 ("Gladue") the Supreme Court of Canada said, at para. 37: [S]entencing judges should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique, and different from those of non-aboriginal offenders. The fact that the reference to aboriginal offenders is contained in s. 718.2(e), in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction. [38] Further, at para. 69, the court said: [69] [T]he judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the courts. In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means. [39] The court also recognized that at times, the principles of denunciation, deterrence, and the protection of the public must take precedence over restorative justice principles. At paras. 78-79, the court said: [78] In describing the effect of s. 718.2(e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases. Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. [79] Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [40] In the present case, in which there are very serious offences of violence, I am satisfied that the principles of denunciation and deterrence and the protection of society are of primary importance. This case does not admit of any other reasonable disposition than a significant sentence of imprisonment. While I am cognizant of the systemic factors that affect aboriginal offenders, whether living within an aboriginal community or not, it is my view that this is a case that does not call for a different sentence because of Mr. Kipp's aboriginal background. CROWN POSITION ON SENTENCE [41] Crown counsel submits that a fit sentence for attempted murder in this case, before consideration of credit for the time Mr. Kipp has spent in custody on these matters, would be in the range of 12 to 14 years. He submits that a fit sentence for aggravated assault prior to credit for the pre-sentence in-custody would be in the range of six to eight years to be served concurrently with the sentence for attempted murder. [42] Mr. Huot submits that a consecutive sentence of two to three years should be imposed for the firearms offence. [43] Mr. Huot submits, therefore, that the appropriate range of the total effective sentence is between 14 and 17 years. He said that is the total effective sentence at the lower end of that range; namely, 14 or 15 years would be appropriate considering the relative youth of Mr. Kipp and taking into account the principle of totality. [44] Mr. Huot submits that Mr. Kipp should receive credit at two-for-one for the time he spent in custody prior to sentencing. Mr. Kipp has been in custody since his arrest on November 22, 2007, a period of two years and 136 days, but 44 days of that time was spent serving sentences on other matters, namely, the offences for which Mr. Kipp was sentenced on November 28, 2007, 30 days, and February 14, 2008, 14 days, meaning that Mr. Kipp has spent two years and 92 days in custody on the matters for which he is to be sentenced today. [45] Mr. Huot submits that Mr. Kipp should therefore receive a credit of four and one-half years towards his sentence. [46] Crown counsel also seeks a lifetime weapons prohibition under s. 109 of the Criminal Code, a DNA order under s. 487.051(a) of the Criminal Code, and a forfeiture order in respect of the weapons, drugs, and money seized by the police in connection with these matters. DEFENCE POSITION ON SENTENCE [47] Mr. Bauman submits that all sentences should be concurrent and that a global effective sentence of eight years would be appropriate. He therefore seeks an actual sentence of three and one-half years' imprisonment. Mr. Kipp does not challenge any of the ancillary orders sought by the Crown. DISCUSSION AND ANALYSIS The Sentence for Attempted Murder [48] Mr. Huot refers to a number of cases in support of his submission. The first is R. v. Brown 2009 ONCA 563 ("Brown"). In that case, the victim had a chance encounter with Mr. Brown at a parking lot. They knew each other casually. The victim greeted Mr. Brown by tapping him on the shoulder. Mr. Brown apparently took offence, and after an exchange of words with the victim, he produced a handgun and shot the victim a number of times, twice when the victim was facing him and three or four times in the back when the victim was on the ground. The victim was rendered paraplegic and had other serious medical problems as a result of the shooting. [49] The sentencing judge took into account a number of aggravating factors. Multiple shots were fired at point-blank range, including three or four when the victim was on the ground. The shooting occurred in the parking lot of a housing complex in the early evening when other people were in the area. The shooting was completely senseless in that it bore no rational relationship to the victim's actions. Mr. Brown had a criminal record, including six youth convictions and six adult convictions. Mr. Brown was on bail at the time of the shooting relating to weapons offences. There were no mitigating factors other than Mr. Brown's relatively young age, 23 at the time of the shooting. [50] In imposing the maximum sentence of life imprisonment, the sentencing judge emphasized the principles of denunciation and deterrence and noted the increase in gun violence in the community where the offence occurred. [51] In upholding the sentence, the Ontario Court of Appeal said, at para. 33: [33] Finally, we reject the appellant's claim that the sentence imposed was outside the applicable range of sentence for similar offences and offenders. The attempted murder in this case involved the use of a gun without warning in a public place where other citizens, including children, were present and at potential risk, in apparent retaliation for some minor slight. As this court has repeatedly said, the use of guns in public places in Toronto cries out for lengthy sentences. The trial judge took the serious concern of growing gun violence in Toronto into account. This was a proper and necessary consideration. [52] The circumstances in Brown are, in my view, certainly more egregious than those in the case at bar in respect of the utter senselessness of the shooting in response to a minor affront, the cold-blooded nature of the shooting, the time of day and number of other people in the vicinity, and the impact upon the victim. However, there are a number of similarities. In both cases, the offenders had prior criminal records; were on bail on other charges, including those relating to firearms; and fired multiple shots from deadly weapons in a residential setting. In neither case were there any mitigating factors other than relative youth. [53] In R. v. Thiara, [2008] B.C.J. No. 1995 a total sentence of 10 years was imposed on the offender who was convicted of attempted murder, carrying a concealed weapon, and carrying a firearm for a purpose dangerous to the public. The circumstances there bear some similarity to the present case. Mr. Thiara, who was a drug dealer, lured the victim to one of his crack houses to threaten, assault, or kidnap him. Mr. Thiara led the victim to a back room, pulled out a handgun, and shot the victim in the abdomen. The victim went towards the doorway, and Mr. Thiara followed him and shot him at least one more time. The victim collapsed at the front door. As Mr. Thiara and his girlfriend stepped over the victim to leave, Mr. Thiara pointed the gun at the victim's head but did not shoot when the victim said, "Don't shoot me again. I'm dead already." The victim received very serious injuries and was fortunate to survive. He lost a kidney and a part of his small intestine and was left with residual damage in his wrist where a bullet had struck. [54] Mr. Thiara was 19 at the time of the incident and had been in the drug business since he was 17. He breached his bail on one occasion but had no other criminal record. He had a supportive family and expressed remorse. [55] In sentencing Mr. Thiara to 10 years for the attempted murder and two years concurrent for the offence of carrying a concealed weapon, the sentencing judge said, at paras. 17 - 18, as follows: [17] The drug industry is a scourge to our society. Young men such as Mr. Thiara are drawn by the fantasy - the fast life and the easy money. But the drugs are real, the guns are real and the devastation is too real. It lays waste to all around, to addicts such as Mr. Hall, to the dealers such as Mr. Thiara and to innocent bystanders, such as Mr. Thiara's family. [18] Mr. Thiara chose this life. On December 26, he took a concealed weapon to his crack house, with a purpose - to assault Mr. Hall, to warn him and others to pay their debts. In the course of the incident, he shot Mr. Hall at least twice and left him for dead. This was not a crime of the moment, caused by impulse or provocation. The jury was satisfied that Mr. Thiara intended to kill Mr. Hall. It is only luck that saved Mr. Hall, and saves Mr. Thiara from a life sentence. [56] At para. 20, the sentencing judge said: [20] I agree with the Crown that deterrence and denunciation are the principal sentencing objectives in this case. Society will not tolerate violence such as this. It must be denounced in the clearest possible way. Other young men, such as Mr. Thiara must know that they will face lengthy jail terms for conduct such as this. [57] While I found that Mr. Kipp possessed the necessary intention to kill Mr. White at the time he fired the shots at him, Mr. Thiara, it may be observed, displayed an even greater degree of cold-heartedness towards his victim than that displayed by Mr. Kipp. [58] Mr. Huot referred to R. v. Gordon 2009 ONCA 170. In that case, Mr. Gordon and his friend approached another man, Mr. Thompson, outside a café, who tried to buy marihuana. Mr. Thompson apparently considered the offer to be a low ball and punched Mr. Gordon and his friend. Mr. Gordon left the scene and returned a few minutes later with a sawed-off shotgun. He fired three blasts from the shotgun towards Mr. Thompson. The pellets struck Mr. Thompson and two other men. A jury found Mr. Gordon guilty of the attempted murder of Thompson and also found him guilty of attempted murder of the other two men on the basis of transferred intent. [59] The judge sentenced Mr. Gordon to an effective sentence of 12 years on the attempted murder convictions. On appeal, the court held that the doctrine of a transferred intent could not be used to establish the mens rea for attempted murder and set aside the convictions for attempted murder of the two bystanders. However, in upholding the 12-year sentence for attempted murder, J.A. Watt remarked, at paras. 87 - 88, as follows: [87] The appellant is a youthful, non-violent recidivist who was on probation at the time of the shootings. With a generous allowance for his age, his employment record is limited and his educational achievements minimal. [88] Principles of denunciation and deterrence command a substantial sentence. I am not persuaded that the sentence imposed here reflects error. Although I would grant leave to appeal sentence, I would dismiss the appeal. [60] In R. v. Cuthbert, 2007 BCCA 585 ("Cuthbert"), the court upheld an effective global sentence of 12 years' imprisonment for the attempted murder of his former spouse, discharging a firearm at her new spouse, and possession of a sawed-off shotgun. In that case, Mr. Cuthbert had no criminal record and substantial support from his family and the community. [61] The sentencing judge emphasized the principles of denunciation and general deterrence and regarded rehabilitation as of lesser importance. In upholding the effective 12-year sentence for attempted murder, Chief Justice Finch said, at para. 56: [56] These offences, however, were not the result of momentary inattention or an error in judgment. The appellant engaged in a pre-meditated and deliberate course of action, the outcome of which was intended to be the death of his former spouse. [62] He went on to discuss the fact that the offence involved domestic violence, which was an aggravating factor. [63] The facts of Cuthbert are, of course, quite different from those of the present case. In particular, a significant aggravating factor in Cuthbert was that it involved the abuse of a former spouse, which the judge treated as being similar to the aggravating factor codified in s. 718.2(a)(ii) of the Criminal Code. Cuthbert also involved a greater degree of planning and with premeditation than does the present case. [64] The final case referred to by Mr. Huot with regard to the sentence for attempted murder was R. v. M.M., [2004] O.J. No. 325 (S.C.J.). M.M. was a spectator at a community basketball game. The game was being played without referees and the players called their own fouls. The players became quite aggressive, and at one point, one of the players punched another player in the face. A third player, Mr. Richards, got involved and wanted to fight the puncher. The defendant came onto the floor and shot Mr. Richards four times with a .357 Magnum handgun. A stray bullet grazed another spectator. M.M. had another gun on his person. He was prohibited from possessing firearms. M.M. was found guilty of attempted murder, aggravated assault, committing an aggravated assault with a firearm, two counts of possession of a firearm while prohibited, and three counts of motor vehicle flight. M.M. had a criminal record, but not many of the prior offences were of a violent nature. M.M. received an effective global sentence of 18 years, including 12 years for the attempted murder. [65] With regard to the attempted murder, the judge said that it was not a case involving stark horror or a worst offender that would justify a life sentence. He concluded it was a case that called for a sentence of 12 years, noting at paras. 40 - 41 as follows: [40] The aggravating factors that exist here are the violence in a school in which many people were in attendance, the Defendant brought a powerful firearm into the public setting and discharged it without apparent concern for others present, and his entry into a confrontation between two other persons when he was not even playing basketball on the evening in question. [41] Specific and general deterrence as well as denunciation are important considerations here. The casual use of guns in a public place such as high school cannot be accepted. Society calls for a sentence that rejects such behaviour. [66] Turning to the defence submissions, Mr. Bauman refers to R. v. Joseph, 2003 BCCA 369, a decision from our Court of Appeal, which he submits involved much more serious circumstances than the present case. Mr. Joseph and Mr. Hawkins had prior dealings where Mr. Hawkins believed that Mr. Joseph had short-changed him in the sale of a quantity of marihuana. Mr. Hawkins, in retaliation, had stolen a half-pound of marihuana from Mr. Joseph. When Mr. Joseph learned that Mr. Hawkins was at a dance in Mr. Joseph's neighbourhood, he obtained a ride from another man and went to the dance hall armed with a semiautomatic .22 calibre rifle. [67] Mr. Hawkins and another man, Mr Meredith, left the dance hall in a car driven by Mr. Hawkins. Mr. Joseph and his friend and their wives went after them. A high-speed chase ensued. Ultimately, Mr. Joseph produced his rifle and began shooting at the Hawkins' car, firing a number of shots, some of which went through the back window of the car and some of which went through the bodywork of the car. One of the bullets hit Mr. Meredith in the back that drew blood but did not hit any vital organs. [68] Mr. Joseph pleaded guilty to a charge of attempted murder, and the Crown and defence made a joint submission that the sentence should be one of seven years' imprisonment. The trial judge rejected the joint submission and imposed a 10-year sentence. The sentencing judge concluded that the applicable range of sentence was 10 to 15 years and imposed a sentence at the bottom end of the range. He made the following remarks concerning Mr. Joseph's actions and their result: [81] ... Mr. Joseph's actions imperilled both Hawkins and Meredith, the latter of which had no involvement with the drug theft. That is quite in addition to the risk that occurs when firing up to fifty rounds from a semi-automatic twenty-two rifle from a speeding car at another speeding car in an area where rural residences and a residential school exists. [82] That no one was killed, whether Hawkins or Meredith as targets, or someone walking or driving along the road, is simply a matter of good luck. It had nothing to do with Mr. Joseph's intent, which was to kill. Indeed, but for such luck, Mr. Joseph may well have been facing charges for murder. [69] In dismissing the appeal brought by Mr. Joseph, the court concluded that the sentence imposed was at the low end of the possible range and it was, therefore, right for the trial judge not to give effect to the joint submission. [70] Mr. Bauman submits that Mr. Joseph's intensive effort to essentially hunt down his victim and his actions in shooting at a moving car in an area where there was a school are far more aggravating circumstances than those surrounding the shooting by Mr. Kipp, particularly considering that Mr. Kipp had called ahead to warn the other occupants of the house to stay put. [71] With respect, that submission ignores the fact that Mr. Kipp fired a number of shots from a high-powered rifle in a residential area with the potential for stray bullets to travel through the walls of houses and strike innocent persons. [72] Mr. Bauman also refers to R. v. Sellen, 2008 ONCA 623, in which the court reduced an effective sentence of 11 years for attempted murder to one of eight years. The reasons are brief, but it is clear that in reducing the sentence, the court took into account the facts that the offence was not planned and deliberated, it was committed on the spur of the moment, and the fact that the appellant had been drinking and taking drugs for many hours before the offence. The court was also influenced by new evidence that included a Gladue report showing the serious impact on the appellant of the abuse he suffered at the hands of his father and evidence that the appellant had received excellent assistance from the aboriginal offender substance abuse program while in prison that was helping him to come to terms with the trauma of his upbringing which contributed to his substance abuse and tendency to resort to violence. Those are factors that are not present in this case. [73] Defence also refers to R .v. Johnston, 2009 NSSC 218 in which an effective sentence of nine and one-half years was imposed for attempted murder. That case involved a shooting incident outside a bar. Two men were killed and one man was injured. Mr. Johnston and another man were charged with two counts of murder and one count of attempted murder. A jury acquitted them of the murder charges but found Mr. Johnston guilty of attempted murder. Mr. Johnston was 27 years old, had a prior criminal record that did not include violent offences, had an uneventful upbringing, and parents who continued to support him. [74] The sentencing judge referred to the incidence of use of illegal handguns in the community and the fear that it causes. He noted the aggravating factors that handguns were used in an area where a number of people who were close by were put at risk and that a bullet found its way into an occupied residence across the street. At para. 43, the court stated: [43] The range of sentence for an offence of attempted murder is at the high end, 10 to 15 years incarceration for the most serious cases involving a devastating injury or marked cruelty. The mid-range for this offence is 4 to 9 years and the low range is 4 to 5 years. [75] The sentencing judge held that the sentence should be at the high end of the midrange. [76] Based on the authorities to which I have been referred, I am not satisfied that a sentence in the range of 10 to 15 years is reserved for the most serious cases involving a devastating injury or marked cruelty or that there is a midrange for the offence of attempted murder of four to nine years. I am not satisfied that it is appropriate to try to peg any particular attempted murder into one of three discrete categories. [77] Mr. Bauman also refers to R. v. Burton, [1994] B.C.J. No. 2031 (C.A.) ("Burton"), again from our Court of Appeal, in which the offender was convicted by a jury of attempted murder and use of a firearm while committing the offence of attempted murder. He had gone to an office of the Workers' Compensation Board with two loaded handguns that he had secreted in a briefcase. When he met with an employee with whom he had previously had some contact of a confrontational manner, he pulled out a revolver and pointed it at the employee. The employee fortunately reacted quickly and wedged his finger between the trigger and trigger guard so that Mr. Burton could not fire the gun. A struggle ensued, and Mr. Burton was eventually subdued. The judge imposed a sentence of seven years for the attempted murder and a consecutive sentence of three years on a charge under s. 85 of the Criminal Code. [78] The offender in that case was 50 years old and had only a very dated record that did not include violent offences. [79] In dismissing the sentence appeal, the court did not specifically refer to any case authorities but stated, at para. 14: [14] I have perused the cases that have been provided by Mr. Holloway and, with deference, I am unable to agree that the sentence imposed for either offence could be regarded as excessive, given the circumstances of this case. [80] I have to say that I do not find Burton to be particularly helpful in determining what a fit sentence is in this case. [81] I believe that a significant sentence is required to denounce Mr. Kipp's conduct, to make Mr. Kipp and others aware that resorting to the use of firearms, particularly in public places, to settle disputes that arise in the drug trade will be dealt with severely. The proliferation in the carrying and use of deadly firearms in this community is truly troubling. As I have already remarked, Mr. Kipp not only seriously injured two men, he placed innocent people at risk. Blasting away with a semiautomatic rifle in the middle of a residential neighbourhood can only bring fear to its citizens. It is only by good luck that Mr. Kipp was not facing a charge of murder. [82] As I have noted, there are a number of aggravating factors in this case. [83] By way of mitigation, Mr. Kipp is still a young man, and hopefully he will persevere with his expressed desire to free himself from a life of drugs and the violence that accompanies the drug underworld. His sentence should not be so great as to stifle any true desire that he has in respect of his own rehabilitation. [84] In all of the circumstances, I conclude that a fit and proper sentence for the offence of attempted murder, before credit is given for the time he has spent in custody, is one of 10 years. [85] With regard to the offence of aggravated assault, Mr. Huot refers to one case, R. v. Woolery, [2000] O.J. No. 3634 (S.C.J.), the circumstances of which are similar in some respects to the present case. Mr. Woolery got into a dispute with Mr. Shaw over a perceived theft of some music tapes. After an exchange of words and some pushing and shoving, Mr. Shaw escaped. Mr. Woolery went into his home and retrieved a handgun, got in his car, and went searching for Mr. Shaw. When he saw Mr. Shaw, he fired three shots at him from inside his car. One of the shots struck Mr. Shaw in the elbow. The area where the shooting occurred was densely populated. Mr. Woolery was sentenced to a term of six years' imprisonment. [86] Mr. Bauman, on the other hand, refers to R. v. Mordales, [1991] B.C.J. No. 428 (C.A.). Mr. Mordales and his victim had once been friends but the friendship had soured. Mr. Mordales had stolen a number of guns from his victim's home and had returned to the home with a sawed-off shotgun to look for another gun when the victim came home. Mr. Mordales confronted the victim with the shotgun. The victim ran, but Mr. Mordales caught up with him and shot him in the abdomen. The victim fell to the ground and rolled as Mr. Mordales fired another shot which missed. Mr. Mordales was acquitted of attempted murder but convicted of aggravated assault and sentenced to six years' imprisonment. He was 22 years old at the time of the offence and had a criminal record that did not include violent crimes. [87] On appeal, the court noted that Mr. Mordales had demonstrated an ability to obtain and maintain employment and get along, for the most part, with other people at work and in social settings. The offender had no history of violence, and the offence was out of character. The court reduced the sentence to four years. [88] Mr. Bauman also refers to R. v. Dantimo, [2009] O.J. No. 655 (S.C.J.), where a young aboriginal offender was sentenced to an effective sentence of 22 months in jail for aggravated assault in a stabbing incident. Substantial consideration was given to Mr. Dantimo's aboriginal background and its effect on the offender, as established by the Pre-Sentence Report. [89] In the circumstances of this case, and considering the authorities, I am of the view that an effective sentence of six years' imprisonment for aggravated assault is fit and proper. The sentence for aggravated assault is to be served concurrently with the sentence for attempted murder. [90] Turning to the sentence for possession of a loaded restricted or prohibited firearm, at the time he committed this offence, s. 91(5) of the Criminal Code provided for a minimum sentence of one year. Crown counsel urges me to have due regard to the fact that this is a minimum sentence and suggests that in the context of the earlier offences involving the use of firearms, a sentence greater than the minimum should be imposed. Mr. Huot refers to several cases dealing with sentences for firearm offences decrying the increase in the possession and use of such weapons, including R. v. Nguyen, 2005 BCCA 115 ("Nguyen"); R. v. Jarsch, 2007 BCCA 189 ("Jarsch"); R. v. Porsch, 2007 BCSC 1621; and R. v. Ross, 2008 BCSC 854. [91] The sentence imposed by the trial judge in Nguyen was one year, which Madam Justice Southin thought was too low but did not increase because the global sentence including other offences was thought to be appropriate. [92] In Jarsch the sentence was 21 months. [93] If it were not for the principle of totality, which I will discuss below, I would have imposed a sentence of two years on this count, as sought by the Crown. Concurrent or Consecutive Sentence [94] I turn, then, to the question whether the sentence for the firearms offence should be concurrent or consecutive. Generally, offences that are separate and distinct, that is to say, sentences that constitute a different transaction, should each attract a separate sentence (see: R. v. Awasis, 2009 BCCA 134 at para. 22), although the cumulative effect of the sentences should be considered in relation to the principle of totality to see if the global sentence is fit and appropriate (see: R. v. Au, 2006 BCCA 533 at para.15). [95] Expressed another way, the test for consecutive sentences is whether the offences were part of a linked series of acts within a single endeavour (see: R. v. G.P.W., [1998] B.C.J. No. 838 at para. 35). [96] Mr. Bauman submits that there is sufficient nexus between the offence of possession of the revolver and the other offences such that concurrent sentences would be appropriate. He says that it is a reasonable inference that when he possessed the rifle which he chose to take to the crack house, he was also in possession of the revolver, so there is similarity of offence and a close connection in time between the offences. [97] Mr. Bauman referred to R. v. Sackanay, [2000] O.J. No. 885 (C.A.), where the court held that the sentencing judge had erred in imposing consecutive sentences for a sexual assault and a separate aggravated assault on a different person 19 hours apart. The court held that both offences were attributable to the appellant's consumption of alcohol and drugs as part of a single continuous state of intoxication. The court considered that they had an element of continuity that required the sentences to be concurrent. [98] Mr. Bauman also refers to R. v. Essiambre, 2004 BCCA 150, in which Mr. Justice Braidwood referred to R. v. Dujmovic, [1990] N.S.J. No. 144 (C.A.) where the judge referred to sentences being "of similar continuous criminal activity." Mr. Justice Braidwood agreed with the proposition that "the choice of consecutive versus concurrent sentences does not matter very much in practice so long as the total sentence is appropriate." [99] In this case, I am not satisfied that there is sufficient nexus between this offence and the others such that a concurrent sentence would be appropriate. While Mr. Kipp likely had the revolver in his residence when he retrieved the rifle and committed the offences on November 17, the possession of the revolver five days later was a separate and distinct offence involving a different firearm than that used in the other offences and committed at a different time and place. The possession of the revolver was not part of one continuous transaction or pattern of criminal activity in which Mr. Kipp engaged on November 17. To impose a concurrent sentence on this count would be to impose no punishment for that crime, in my opinion. It is a serious crime that carries a mandatory minimum sentence of imprisonment and only a consecutive sentence would be fit and appropriate, in my view. [100] While I am satisfied the sentence on the firearms offence should be consecutive to the other sentences, I still have to consider the principle of totality in determining a fit and appropriate total sentence in all of the circumstances. [101] The principle of totality was recently discussed by Mr. Justice Frankel in R. v. Li, 2009 BCCA 85 where, at para. 27: [27] The principle of totality also factors into the imposition of an appropriate aggregate sentence for multiple offences. In M.(C.A.), Lamer C.J.C. described the principle: [42] In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle". The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. [102] I think that a total sentence of 12 years would be somewhat harsh considering Mr. Kipp's age and the fact that this is the first penitentiary sentence he is facing. Accordingly, I will impose a sentence of one year for possession of the loaded revolver to give a total effective sentence of 11 years, which will be reduced by four and one-half years to take into account the time Mr. Kipp has spent in custody. ACTUAL SENTENCES IMPOSED [103] For the offence of attempted murder, I impose an actual sentence of five and one-half years of imprisonment. [104] For the offence of aggravated assault, I impose an actual sentence of one and one-half years of imprisonment to be served concurrently with the sentence for attempted murder. [105] For the offence of possession of a loaded prohibited weapon, I impose an actual sentence of one year of imprisonment to be served consecutively to the other two sentences. [106] I also make an order under s. 109 of the Criminal Code prohibiting Mr. Kipp for life from possessing any firearm, crossbow, restricted weapon, ammunition, and explosive substance. [107] Further, I make an order under s. 487.051(a) of the Criminal Code that Mr. Kipp will provide a sample or samples of bodily substances for the purpose of forensic DNA analysis. [108] I also make an order of forfeiture in respect of the weapons, drugs, and money seized by the police in connection with these matters. [109] Finally, I make an order waiving any victim impact surcharges in light of the lengthy custodial sentence that I have imposed. "B.M. Joyce J."