R. v. Stewart

R. v. Stewart Court Supreme Court Date 2009-01-06 Citation 2009 NSSC 7 Docket 305006, CR 304975 Judge/Registrar/Adjudicator Beveridge, Duncan R. (Honourable Justice) (SC) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Stewart, 2009 NSSC 7 Date: 20090106 Docket: CR 304975 and CR 305006 Registry: Halifax Between: Her Majesty the Queen versus Rhys Stewart Judge: Justice Duncan R. Beveridge Heard: January 6, 2009, in Halifax, Nova Scotia Released: January 7, 2009 Counsel: Shauna L. MacDonald, for the Crown Roger A. Burrill, for the Defence By the Court: [1] I have before me Rys Warren Stewart who has pled guilty to two charges of break and enter contrary to s.348(1)(b) of the Criminal Code. [2] The first one relates to an event on October 28, 2006 when he broke into the residence of one Marek Klimek on Pryor Street in Halifax. [3] The uncontested facts are that Mr. Stewart broke into the Klimek home some time late in the afternoon of October 28. It appears from the representations of the Crown that either Mr. Stewart alone or with assistance carried out a search of that home to steal things of value. Missing were jewellery, a phone, cash and credit cards. A tool was used to gain entry as a screen was cut. Shortly afterwards Mr. Stewart was observed on security cameras at Sears using one of Mr. Klimek’s credit cards. Apparently he used it to buy a package of socks, a value of approximately $20.00. He also used it to buy some electrical equipment. He returned the next day attempting to return that equipment for a refund. The jewellery has not be recovered and it appears the loss by the Klimek’s is covered by their insurance. Mr. Stewart was not arrested in 2006. He was arrested in October 2008. [4] He was arrested because evidence linked him to the second charge before the Court that of a break and enter into the home of Kevin Richard Duffy on Almon Street in Halifax on October 23, 2008. The police were notified late in the afternoon of that date that a break had occurred. Entry had been gained by smashing glass in a door to gain entry. Stolen in this break and enter were a 42" Plasma TV, a Blackberry and charger, jewellery of approximately $2,700.00 value, an assortment of female clothing. [5] As I understand it, the only item that was recovered was the Plasma TV. This was recovered from Mr. Stewart’s mother’s residence. It seems obvious from just the theft of the TV that Mr. Stewart was not involved in this on his own. I do not know who else might have been there, but considering the list of items that were taken, it seems highly improbable if not impossible for Mr. Stewart to have carried out this offence on his own. I have no indication that Mr. Stewart was somehow a follower in the commission of this offence. [6] Neither of the victims of these two offences filed a victim impact statement. The Crown alleges that it is in essence common knowledge that homeowners are impacted in a significant way when someone breaks into their home, violates their most private secure bastion in society, their home, to find it ransacked by a person or persons unknown, fearful that they might return, fearful what would have happened if they had been home when that occurred. Indeed, when Mr. Duffy returned home with his family, he refused to enter the home on his own. He went to a neighbour to call 911, rather than risk going in to find out who might be there. [7] I accept, without reservation, the Crown’s suggestion that homeowners do feel violated by the commission of this kind of offence. To call it a mere property offence is a mis-description. If a property is impacted, it impacts on the feelings of security of not just these particular people, but by others in the community who hear about this - and they do hear about it from them. What happened to you? Well, I was a victim of a break and enter. Well, my God, it happened to you. [8] I do not know if Mr. Stewart has ever spoken to anybody who has been a victim. He has certainly victimized these individuals, along with a long list of others. I am not sure how he would feel if it was his mother who arrived home to find her home ransacked or searched, and her most private possessions, some of them may be irreplaceable. I noticed the heirloom jewellery stolen from the Duffys, not recovered. The jewellery from the Klimek house, not recovered. Things like that cannot be replaced, nor can the security, the feeling of being safe in your home. Perhaps it can be recovered over time, but it is a significant impact. Parliament, I think, has recognized a long time ago by the imposition or the setting of the maximum penalty for this offence to be life imprisonment. This is not a mere property offence. [9] By way of the circumstances of Mr. Stewart - he is presently 51 years of age, grew up in a home that was I am sure a busy and a hectic one, eleven children and parents that were split. I have no significant information beyond the bare bones. He did not complete high school, but has while institutionalized at various times completed his GED. He has worked as a roofer in Ontario and Nova Scotia, and done carpentry work. The defence says he has limited skills, says he has difficulty with addictions, does not have great insight for the long term and has enjoyed little joy or privilege. [10] The Crown has tendered a printout of Mr. Stewart’s criminal record. I actually cannot remember when I have seen a record so extensive. From the age of 21 to when he was 48, he had accumulated no less than 93 convictions. Some are less serious than others. Some mischief charges, but an alarming number of charges of break, enter and theft. In fact, that is the predominant offence that is in this abominable record. There are also offences of aggravated assault, assault, robbery. The only gaps, the only significant gaps in this record appear to be when Mr. Stewart was incarcerated. Mr. Stewart has spent some 70 odd days on remand and seeks two to one credit for that time which equates to, depending on how you calculate it, either 144 or 150 days. [11] The Crown’s recommendation on sentence is that Mr. Stewart be sentenced to a total sentence of four years incarceration in a federal institution. The defence suggests that a sentence of three years would be appropriate. [12] Mr. Stewart: 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. [13] There are other principles of sentence. Mr. Stewart, your counsel acknowledges that general deterrence is something that the Court has to keep in mind. I agree with that suggestion, but I also have to keep in mind deterring you. In addition, Sir, there has to come a point in time where the Court can, under these principles, simply say, “In order to safeguard society, we need to separate you from society.” Do you know what that means, Sir? That means you stay in jail because you are not able to, when released, abide by ordinary standards of decency. Ordinary standards of decency means you do not break into other people’s homes under any circumstances. [14] Mr. Burrill has referred to, well, you have not had much of a life - and that may be so. He says you do not have great insight for the long term and you have little joy or privilege, and that you only go for the short term. Well, joy or happiness, Mr. Stewart, does not come out of a bottle and there is no indication before me that you were drunk or under the influence of anything when you committed these offences. The only evidence I have is after you committed the offences you were then able to buy alcohol. It is not happiness or joy that comes out of a bottle. It most certainly does not come, or ever can come, from victimizing others for your short term escape from reality. [15] The only mitigating factor that I see before me is that you entered a plea of guilty to these offences. I am cognizant of the fact that having a prior record is not in and of itself an aggravating factor. I cannot punish you for what you have done in the past, but I can say to you, Sir, is that with that kind of record you are not entitled to any leniency from any court. Your counsel has referred to the fact that you feel an obligation or responsibility to your mother. I am not sure you truly do, Sir, and if you do you have a strange way of showing that. In 2006, when you were here because of the ill health of your mother, you committed offences that caused you to have to flee the jurisdiction. You returned, as I understand it, in September, 2008 and you commit a further break and enter into someone’s home in October, 2008. You are of no use to your mother or to assist her whatsoever if you are in jail, but that is what you choose to do. [16] In my view, the Crown’s recommendation of four years is indeed a charitable one. [17] I am not ignoring the fact, Mr. Stewart, that at the end of whatever sentence I impose, you will be released again. What you do on your release is entirely up to you. You are well aware of the nature and kinds of programs available to you in an institution. It is a strange thing for a court to be sentencing a 51 year old man for a break and enter, but that is what I have to do. I sincerely hope, Sir, that this is the last time you have to be before any person in authority in relation to any offence because there is going to come a time when the Crown may say, “I think this man is a dangerous offender. He cannot control himself.” Or, a court is going to simply impose a sentence that warehouses you, that it separates you from society. I do not think you want that. I do not have the answers for how to make your life a better one, Sir, other than the simple primary one is you do not commit criminal offences. Because with this record, even if it is not a serious criminal offence, you will be back in jail. I fully accept Mr. Burrill’s comment that you do not much enjoy serving time with the youngsters you see in jail these days. Your choice about where you spend your time, Sir, is entirely up to you. [18] Please stand. [19] On the break and enter charge in relation to October 28, 2006 - CR 305006 - I sentence you to a period of incarceration of four years in a federal institution. In relation to the charge of break, enter and commit theft - CR 304975 - October 23, 2008, I sentence you to a concurrent period of incarceration of four years in a federal institution. [20] All the remaining charges in these indictments, those charges are dismissed.I do not think there is any point in imposing a victim fine surcharge. It is waived. _______________________________ Beveridge, J.