R. v. Hansen

2006BCSC0932 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hansen, 2006 BCSC 932 Date: 20060124 Docket: 60986 Registry: Kelowna Regina against Kristopher Michael Hansen Before: The Honourable Mr. Justice Barrow Oral Reasons for Sentence January 24, 2006 Counsel for the Crown: E.A. Pedersen Counsel for the Accused: R.D. Morgan Place of Hearing: Kelowna, B.C. [1] THE COURT: The accused pled guilty to two counts of bank robbery on October 26, 2005. He is before the court now for sentencing. The Crown and the defence have jointly submitted that a sentence of one year in jail to be followed by a further year of probation is appropriate in these circumstances. [2] As to the effect of joint submissions, I note the following observations of Mr. Justice Finlayson in R. v. Cerasuolo, [2001] O.J. No. 359 (C.A.) which was adopted by the Court of Appeal of this province in R. v. Bezdan, [2001] B.C.J. No. 808 where at para. 14 the court held: The Crown and the defence bar have cooperated in fostering an atmosphere where the parties are encouraged to discuss the issues in a criminal trial with a view to shortening the trial process. This includes bringing issues to a final resolution through plea-bargaining. This laudable initiative cannot succeed unless the accused has some assurance that the trial judge will in most instances honour agreements entered into by the Crown. While we cannot over emphasize that these agreements are not to fetter the independent evaluation of the sentences proposed, there is no interference with the judicial independence of the sentencing judge in requiring him or her to explain in what way a particular joint submission is contrary to the public interest and would bring the administration of justice into disrepute. [3] The task at hand, therefore, is to assess the circumstances of this case in light of the principles of sentencing which are set out in the Criminal Code and to independently evaluate the proposed sentence in light of those principles. Thereafter it is for the court to determine whether the proposed sentence is or is not contrary to the public interest or whether it might bring the administration of justice into disrepute. [4] If the sentence accords with the principles of sentencing as expressed in the Criminal Code, it cannot, it seems to me, to be contrary to the public interest nor can it be concluded that it would bring the administration of justice into disrepute. [5] The facts giving rise to the convictions can be simply stated. On February 5, 2005, the accused entered a branch of the Interior Savings Credit Union on Harvey Avenue and after first asking to open an account, produced a letter or a note to the teller demanding money and threatening that if money was not forthcoming he would shoot her. The teller, Ms. Brisbourne, complied and gave the accused $500 in $50 bills. [6] The accused left and later that same day entered another branch of the same Credit Union and again, after asking to open an account, produced the same note to yet another teller, Ms. Brawley. Ms. Brawley also complied and gave the accused $500, this time in $100 denominations. The accused then left. [7] Two days later, acting on a tip, the R.C.M. Police went to an abandoned house in Kelowna and found the accused sleeping there. He was arrested and charged. He was remanded in custody until his preliminary hearing in May of 2005. Thereafter he entered guilty pleas in this court. [8] While the circumstances of the offences are pedestrian in the sense that they are all too common, the circumstances behind the commission of these offences stand as compelling evidence of the power of drug addiction and the havoc it wreaks on society. Further, they illustrate the difficulty the criminal justice system and society at large has in coming to grips with this problem. [9] Mr. Hansen does not know his natural parents. He was adopted at the age of 3 by his step-parents and moved to Prince Rupert where he grew up. There were difficulties in his home. He suggests that his mother was abusive towards him. Whatever the source of the problems, it is apparent that they were serious enough that he was apprehended by Social Services when he was 11 years old and spent the remainder of his formative years in foster care. [10] By way of formal education, he has completed grade 7. He left school midway through grade 8 and has done nothing in the years since to further his education in any substantial way. [11] He has worked sporadically since leaving school. In 2003 he and his girlfriend, Tamara Young, moved to Edmonton. They stayed there a year and it was during that time that he began using crystal methamphetamine. In part because of his drug use, the couple spent some of the time while in Edmonton either living on the street or at a shelter for homeless people. [12] In 2004 the couple came to Kelowna with a view to addressing the drug problems they both had developed. Mr. Hansen enjoyed short-term success. He managed to get a job. By September, 2004, however, he had returned to his drug habit and predictably, within a short time, he was out of work and again living either on the street or in a shelter. [13] In 2004 he began using crack cocaine. He became heavily addicted and began selling the drug to finance his own consumption. One of his customers was Mr. Shelley. Before long their roles reversed inasmuch as Mr. Shelley began supplying Mr. Hansen with drugs. The arrangement generally was that Mr. Hansen would receive drugs on credit, sell them and consume any profit realized. Periodically, and again predictably, Mr. Hansen would simply consume the drugs that had been advanced to him and as a result fall into debt with Mr. Shelley. [14] Mr. Shelley, it turns out, was not a sympathetic creditor. On December 1, 2004, he and an associate picked up Mr. Hansen in a car. In an effort to impress upon him the need to pay his debts and by way of incentive to do that, they broke one of his fingers. Mr. Hansen paid his debt, but before the end of the month he was in debt again. Mr. Shelley set about repeating his collection efforts. This time he had Mr. Hansen place his hand on a fireplace hearth and then smashed it with a weightlifting bar. [15] It was not until January 13, 2005 that Mr. Hansen sought medical attention for his injuries. When he attended an outreach clinic that day, the nurse on duty examined his hand and noted a piece of bone protruding from one of his fingers. When he was eventually examined by a plastic surgeon, the doctor, whose letter is on file as an exhibit, wrote that the injury was consistent with having been caused by a crushing blow with a heavy object such as a hammer or weightlifting bar. The injury has left Mr. Hansen with a permanent residual disability to his hand. [16] Perhaps motivated by these events, Mr. Hansen made efforts to rid himself of his drug habit. He had medical tests done prepatory to entering a rehabilitation facility in mid-January, 2005. His resolve waned however and he began to use drugs again. [17] By February 3, 2005, the date of these offences, he was again in debt to Mr. Shelley. That day Mr. Shelley and an associate picked up Mr. Hansen and demanded payment. When he was unable to comply, Mr. Shelley told him he would have to rob a bank. Mr. Shelley took Mr. Hansen to a paint store near the Harvey Street branch of the Interior Savings Credit Union, the institution that Mr. Shelley had determined would be robbed by Mr. Hansen. [18] Mr. Shelley went inside the paint store, got a piece of paper and returned to the car where Mr. Hansen and Mr. Shelley's associate were waiting. Mr. Shelley wrote out the robbery note using the roof of the car as support. He then took Mr. Hansen to the Credit Union. [19] Mr. Hansen went in, but on his first attendance he lost his nerve and left without robbing it. He went into a nearby electronics store from which he was retrieved by Mr. Shelley and his associate. He then returned to the Credit Union and on this occasion committed the robbery in the manner described above. [20] When Mr. Shelley realized that insufficient funds had been obtained from the robbery to retire the debt, he and his associate took Mr. Hansen to a second Credit Union which Mr. Hansen robbed. Mr. Hansen was then taken to a nearby hotel and left. He called a cab and was driven downtown where he was arrested a few days later. [21] Following his arrest, Mr. Hansen gave the police a statement from which the foregoing account of the robberies has been drawn. Standing on its own, I would have great difficultly accepting the explanation offered by Mr. Hansen. The police, however, to their credit, investigated his allegations. They examined surveillance videotapes from the Credit Unions which confirmed Mr. Hansen's aborted first attempt at robbery. They examined surveillance videotape from the electronics store which confirmed his entry into that business and his subsequent departure in the company of two other men. [22] They interviewed employees of the paint store who recalled someone, and not Mr. Hansen, coming into the store, getting a piece of paper and then appearing to write on the paper using the roof of a car as support. They questioned the motel employees and the taxi-driver, all of whom confirm Mr. Hansen's account of events. [23] When Mr. Hansen was arrested, he had a removable cast on his right hand that had been supplied to him as a result of the injuries he had earlier received at the hands of Mr. Shelley. [24] Mr. Hansen remained in custody following his arrest until May 19, 2005. He was released on a form of house arrest following his preliminary inquiry. He was required, by the terms of his release, to live at a recovery house for drug addicts. He did that and was successful and remained drug free until August 19, 2005. During that period he managed to secure some intermittent employment for which he was granted permission to be out of the house. [25] On August 19, however, he succumbed to his addiction and again used drugs. After doing so, he returned to the recovery house in compliance with the terms of his curfew and admitted his relapse. The staff called the police and Mr. Hansen waited for their arrival. He was arrested and spent the next month in custody. [26] On September 15, 2005, he pled guilty to breaching the terms of his release and was sentenced to one day in jail, given that he had spent a month in pre-trial detention. On his release, he returned to a drug recovery house where he remained and prospered until October 29, 2005. [27] On that day, he did not return to the house and began again consuming and selling drugs. He is now charged with trafficking some $40 worth of crack cocaine. He has been in custody on that charge since his arrest, as I understand it, in November. [28] I accept that Mr. Hansen has been and is motivated to address his addiction. His conduct over the past year is evidence of that fact and of the fact that he has the ability, assuming he maintains his resolve, to address this blight on his life. [29] It is, however, apparent that notwithstanding the chaos that drug addiction has left his life in and notwithstanding the physical injuries he has sustained as a result of that lifestyle, and notwithstanding the personal satisfaction derived from his success, limited though it has been to this date, Mr. Hansen has been unable to rid himself of his addiction. It may well be that he will always be at risk of succumbing to it. [30] All of the foregoing circumstances stand as testament to the power of that addiction. Mr. Hansen is twenty-two years old. He remains in a relationship with Ms. Young, who is now pregnant with his child. She has been present in court and has supported him throughout these proceedings. She has herself experienced difficulty with drug abuse, but is now attempting to put that behind her. Given the fact that she is responsible for her unborn child, one would expect that if motivation is necessary it would be found there. [31] Mr. Hansen also has the support of a worker from one of the recovery houses in which he resided over the course of the past year. She too has been present in court and while I know nothing of her antecedents, her presence speaks to the faith that others have in Mr. Hansen's intentions to deal with his problems. It is a faith that I sincerely hope he shares. [32] He has a criminal record that consists of seven convictions in youth court, mostly for theft, and one conviction in adult court for carrying a concealed weapon. That offence occurred in 2002 and it is the last conviction on his record. He has no convictions for offences involving overt violence. [33] Other than the time he has served in pre-trial detention over the past year, he has only been jailed once before and that was in 1997 for a period of one month consequent upon a conviction for theft. [34] The range of sentence for offences involving bank robbery with someone of Mr. Hansen's age and background is, I am told by counsel, between two and four years in jail. The circumstances leading up to these events are not a legal excuse for the events themselves. They are, however, circumstances which have a mitigating element to them. [35] Of perhaps greater significance in this case is the fact that Mr. Hansen remains committed to addressing his drug addiction. Ultimately it is only if he is able to do that, that society has any hope that he will no longer commit serious criminal acts. [36] His guilty plea, his conduct following his initial arrest in disclosing the circumstances of his offences, his performance during his residency at various recovery homes convince me of the genuine nature of his desire to overcome his addiction. His failure to do that to this point, however, demonstrates the difficulty of the task he faces. It is only Mr. Hansen, of course, who can address his conduct and it is for him to accept responsibility for it. [37] He is entitled to credit for time he has served in pre-trial detention. That time, when doubled as is appropriate in the circumstances of this case, amounts to some seven months. In light of the circumstances I have outlined, I am not persuaded that to accede to the joint submission put forth by two experienced counsel would be contrary to the public interest and bring the administration of justice into disrepute. [38] I am satisfied that it is a sentence which is appropriate having regard to all the sentencing principles set out in the Criminal Code. If nothing else, however, Mr. Hansen must now understand that if he finds himself convicted of another serious offence, the court will not likely be particularly concerned with his efforts at rehabilitation, rather the court will, as it must, be concerned with protecting the public from the consequences of his conduct. That will necessarily involve a lengthy period of incarceration in a federal penitentiary. [39] In the result, I am sentencing Mr. Hansen to a period of incarceration for one year. I am further ordering that he be subject to the terms of a probation order for a period of two years thereafter. [40] I have extended the term of probation beyond that submitted jointly by counsel primarily for Mr. Hansen's benefit. If, as it is suggested, he is committed to addressing his problems, the longer he is under a term of probation the greater will be the incentive for him to follow through and access the programs that are available to him through Probation Services. [41] The terms of the probation order are those which are prescribed by the Criminal Code. In addition, the following terms will apply: [42] First, that Mr. Hansen is to report to a probation officer at 1355 Water Street, Kelowna, B.C. within 48 hours of his release from imprisonment and to report thereafter when required by his probation officer to do so. [43] He must notify his probation officer on his first attendance of his residential address and he must keep his probation officer informed of his current residential address throughout the course of his probation. [44] He is to attend and participate in and complete to the satisfaction of his probation officer, if directed to do so by his probation officer, such assessments and/or counselling including residential treatment as directed by his probation officer. This is not limited to but it specifically includes counselling and treatment for substance abuse. I note that during the course of submissions counsel on behalf of Mr. Hansen indicated that Mr. Hansen is consenting to attend for treatment in relation to his drug abuse difficulties. [45] Next, he is to abstain absolutely from the consumption of illegal drugs. [46] Next, he is not to be in possession of any weapon or any knife or any other thing capable of being used as a weapon in circumstances that give rise to a reasonable inference that the thing has been used or is or was intended to be used as a weapon. [47] Next, he is to write a letter of apology to Ms. Leah Brisbourne and Ms. Maida Brawley, the tellers at the two branches of the Interior Savings Credit Union that Mr. Hansen robbed. That letter is to set out Mr. Hansen's background, his involvement with drugs and the circumstances leading up to the crimes of February 3, 2005. The letter is to be delivered to his probation officer who, after contacting the victims and/or the branches of the Credit Union in question, will, assuming it remains appropriate to do so, forward it to the victims or the branches of the Credit Unions involved. [48] I make that a condition of this probation order for two general reasons. First, I have no doubt that the circumstances that Mr. Hansen subjected these women to on February 3, 2005, were terrifying for them. I consider that it would be salutary for Mr. Hansen and for Ms. Brisbourne and Ms. Brawley if Mr. Hansen were to explain what led up to those events. They are, after all, members of the public and indeed the members of the public most directly affected by Mr. Hansen's conduct and they are entitled to an explanation and an apology. [49] The explanation that has been provided to me today is one worthy of dissemination. It may go some distance towards alleviating the concerns they no doubt have about the ordeal to which they were subjected. [50] These offences fall within s. 109 of the Criminal Code, in particular s. 109(1). In the result, I am making an order prohibiting Mr. Hansen from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of ten years beginning today. [51] Next, the offences for which Mr. Hansen has been convicted are secondary designated offences, as that phrase is used in s. 487.05 of the Criminal Code. I am satisfied that it is appropriate to make an order under s. 487.051(b) in Form 5.04 authorizing that samples of bodily substances of Mr. Hansen be taken for purposes of DNA analysis and used in the manner contemplated by that section and the related section of the Criminal Code. [52] Mr Hansen, I am sure you have heard this before from others, including most notably the support people that are in court here today. While it may not be of any consequence, I will simply add my voice to those. It seems to me that you are motivated to address your problem. If you do not, your life will be condemned to a life of chaos. It is as simple as that. In fact, it is likely that a substantial portion of what remains of your life will be spent in jail. You know that. I am convinced that you know that. [53] I am also convinced that you have abilities beyond those that you have taken advantage of to this point. It is up to you to do that. It is not common that I would make observations of this kind; however, it seems to me that you have made efforts in the past, and you have enjoyed some success. Sadly, but perhaps understandably, your success has been limited. That is no reason to stop. If you do stop, your as yet unborn child is going to be condemned to a life perhaps not dissimilar to that which you experienced and that would be a shame and it would be your responsibility. [54] That is the sentence I impose. I wish you the best, Mr. Hansen. I hope you are able to address those issues. [55] MR. PEDERSEN: Thank you, My Lord. [56] THE CLERK: My Lord, one year, is that on each count? [57] THE COURT: On each count concurrent. Yes. [58] MR. MORGAN: My Lord, there is a victim fine surcharge. [59] THE COURT: It is waived. [60] MR. MORGAN: Thank you. [61] THE COURT: I am required to give reasons. The reasons are that Mr. Hansen is going to jail, that he has no realistic ability to comply with it and it is dispensed with. Thank you. "G.M. Barrow, J. The Honourable Mr. Justice G.M. Barrow