R. v. Cuthbertson

2009 BCSC 1865 R. v. Cuthbertson IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cuthbertson, 2009 BCSC 1865 Date: 20091222 Docket: X072963 X072964 Registry: New Westminster Regina v. Kevin Neil Cuthbertson Before: The Honourable Mr. Justice Gaul Oral Reasons for Sentence Counsel for the Crown T. Buziak Counsel for the Accused R. Gill Place and Date of Hearing: New Westminster, B.C. November 24, 27, 2009 December 17, 2009 Place and Date of Judgment: New Westminster, B.C. December 22, 2009 [1] THE COURT: The offender, Kevin Neil Cuthbertson, is before me on two indictments. On the first indictment, 72964, the Crown charged Mr. Cuthbertson with two firearms offences: one under s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46 [Code] for allegedly having possessed a loaded restricted firearm, and another under s. 91(1) of the Code for allegedly possessing a firearm without being the holder of a valid licence. On the second indictment, 72963, the Crown charged Mr. Cuthbertson pursuant to s. 117.01 of the Code with having allegedly breached a court order prohibiting him from possessing any restricted firearm for life. [2] On 2 October 2009, following a three-day trial on the first indictment, I convicted Mr. Cuthbertson of possessing a firearm without being the holder of a valid licence but acquitted him of possessing a loaded restricted firearm. [3] On 24 November 2009, the first day of sentencing, the second indictment was called ahead and Mr. Cuthbertson was arraigned and pleaded guilty to the sole charge. Consequently, the sentencing hearing that proceeded before me incorporated both indictments. The Facts Circumstances of the Offence Indictment 72964 [4] The facts are set out in greater detail in my reasons for judgment delivered on 2 October 2009. For the sake of efficiency, I will briefly summarize them here. [5] On the afternoon of 10 February 2009, Mr. Cuthbertson was driving a stolen Dodge minivan in and around the area of the Thunderbird Plaza in Langley, British Columbia (the "Plaza"). He was accompanied by an unnamed friend seated in the first passenger seat. [6] Unbeknownst to Mr. Cuthbertson, members of the Langley RCMP had observed his aggressive manner of driving and had determined the vehicle he was driving was stolen. As a result, the police began following the vehicle and assembling a number of additional units in order to affect an arrest. [7] As Mr. Cuthbertson's vehicle reached the western end of the Plaza's parking lot, the passenger exited the vehicle and entered a nearby Vancity Credit Union. [8] Mr. Cuthbertson stopped his vehicle in a parking stall a short distance away from the credit union and kept the vehicle's motor running. After a few minutes, the passenger exited the credit union, returned to the vehicle and made as if he was about to enter it. However, the passenger did not get into the vehicle; instead, he turned and started to walk away. [9] Mr. Cuthbertson then put the vehicle in reverse and began to slowly back out of the parking stall. At this point, a police vehicle on the scene activated its emergency lights. Mr. Cuthbertson immediately got out of his vehicle, leaving it in gear and unattended to continue its trek backwards. The vehicle collided with another parked car and came to a final stop. Mr. Cuthbertson fled on foot through the shopping mall's parking lot; however, he was apprehended by the police almost immediately. [10] When the police examined the stolen minivan, they discovered a loaded Sig- Sauer Model P220 semiautomatic .45 calibre pistol in an open pocket on the driver's side door. There were seven cartridges in the pistol's magazine and one cartridge in its chamber. The weapon was obviously loaded and ready to be discharged. [11] The owner of the firearm was never discovered. There was no evidence presented at trial physically linking Mr. Cuthbertson to the firearm; that is, there was no evidence that Mr. Cuthbertson had been seen holding or manipulating the weapon, nor was there any evidence that his fingerprints were found on the weapon. [12] Mr. Cuthbertson testified in his own defence and denied any knowledge of the firearm being in the vehicle. I rejected his evidence as it was replete with internal inconsistencies and, on the whole, thoroughly unbelievable. Given that Mr. Cuthbertson was the driver of the vehicle and the handgun was located in plain view where it would be impossible for someone driving the vehicle not to have noticed it and known it was there, I concluded there was sufficient evidence to prove Mr. Cuthbertson had the requisite control and knowledge of the firearm to justify convicting him of the count of possessing the firearm. [13] However, I was not satisfied the Crown had proved that Mr. Cuthbertson knew the firearm was loaded. I consequently acquitted him of the count relating to s. 95 of the Code. Indictment 72963 [14] On 22 September 2005, Judge Devitt of the Provincial Court of British Columbia sitting in Surrey convicted Mr. Cuthbertson of a number of serious crimes including robbery. In addition to the custodial sentence imposed for those offences, Judge Devitt ordered pursuant to s. 109 of the Code that Mr. Cuthbertson be prohibited from possessing any restricted firearm for the rest of his life. [15] By pleading guilty before me to the sole count on the second indictment, Mr. Cuthbertson acknowledged that on 10 February 2009 he was in possession of a restricted firearm contrary to the order of Judge Devitt. Circumstances of the Offender [16] Mr. Cuthbertson is a 30-year-old resident of British Columbia. He was born in White Rock and grew up in the Ladner/White Rock area of metro Vancouver. [17] He attended Semiahmoo High School in Surrey, but quit in grade 11 and consequently did not graduate. I am advised by his counsel that in 2008, during his recent incarceration within the federal correctional system, Mr. Cuthbertson completed additional high school courses and obtained his General Education Development (GED) Secondary School Equivalency Certificate. However, he has not yet completed all of the mandatory courses to obtain his Certificate of Graduation, commonly referred to as a "Dogwood Diploma." [18] Mr. Cuthbertson's parents separated when he was four years old. His father currently resides in Courtenay, British Columbia, with his new spouse. Mr. Cuthbertson has one brother who resides in Whistler and two half-brothers who reside on Vancouver Island. Mr. Cuthbertson's mother lives in White Rock. Although counsel for Mr. Cuthbertson advised the Court that Mr. Cuthbertson is in regular contact with his mother and that he has a close relationship with the rest of his family, I note that no character reference letters from any member of his family relating to Mr. Cuthbertson and his present situation were filed on sentencing. [19] Mr. Cuthbertson's common-law spouse died in a motor vehicle accident in 2005. Since that time, their only child, a six-year-old son, has been living with Mr. Cuthbertson's father and stepmother. [20] According to his counsel, Mr. Cuthbertson is an exceptional carpenter with very skilled hands. Mr. Cuthbertson has, however, not been able to put his talents to constructive use because of his longstanding problems with substance abuse and addiction. He became addicted to narcotics in 2001 and since that time has fallen into a life of crime. [21] Mr. Cuthbertson's criminal history attests to the fact that he is someone who is quite familiar with the criminal justice system. His criminal record discloses a number of convictions for serious crimes including firearms offences: 2001-01-11 Hope, BC (1) Obstruct Peace Officer, Sec 129(A) CC (2) Fail to comply with recognizance Sec 145(3) CC (RCMP Hope 00-3595) (1-2) 1 day on each chg 2001-05-02 Surrey, BC Carry Concealed Weapon Sec 90(1) CC (RCMP Langley 2000-37676) 1 day 2001-05-03 Abbotsford, BC Robbery, Sec 344 CC (RCMP Mission 2000-15485) 30 days Probation 18 months 2001-09-20 Abbotsford, BC (1) Theft under $5000, Sec 334(B)(i) CC (2) Fail to comply with probation order Sec 733.1 CC (RCMP Mission 2001-9933) (1-2) 30 days & probation 18 mos on each chg conc 2002-02-08 Surrey, BC (1) Fail to comply with probation order Sec 733.1(1)(A) CC (2) Poss of property obtained by crime over $5000, Sec 355(A) CC (3) Poss of break in instruments Sec 351(1) CC (RCMP Ridge Meadows 2002-766) (1-3) 2 mos on each chg conc 2002-05-27 Nanaimo, BC Poss of property obtained by crime under $5000, Sec 355(B) CC (RCMP Nanaimo 2002-9930) 7 days 2002-10-02 Vancouver, BC (1) Uttering forged document Sec 368(1)(A) CC (Vancouver PD 253287) (2) Poss of property obtained by crime over $5000, Sec 355(A) CC (3) Dangerous operation of motor vehicle Sec 249(1) CC (RCMP Mission 2002-11492) (1) 3 mos & probation 12 mos (2) 6 mos & probation 2 yrs (3) 6 mos & probation 2 mos conc 2003-09-15 Abbotsford, BC Driving while disqualified, Sec 259(4) CC (Abbotsford PS 03-18023) 3 mos & Proh Dri 18 mos 2003-10-21 Surrey, BC Poss of property obtained by crime over $5000, Sec 355(A) CC (RCMP Surrey 2003-89014) 2 mos consec to sent serving & probation 1 yr 2004-12-02 Chilliwack, BC (1) Flight while pursued by peace officer Sec 249.1(1) CC (2) Fail to comply with undertaking Sec 145(3) CC, (2 chgs) (RCMP Hope 04-31712) (1) 6 mos. & probation 18 mos & Proh Driv 3 yrs (2) 3 mos & probation 18 mos on each chg & (6 mos pre‑sentence custody) 2005-09-22 Surrey, BC (1) Robbery, Sec 344 CC (2 chgs) (2) Poss of property obtained by crime Sec 355 CC (3) Dangerous operation of motor vehicle Sec 249(1)(A) CC (RCMP Surrey 2005-77684) (4) Robbery, Sec 344 CC (INST Pacific RTC 1002) (1) 2 yrs & 6 mos on each chg (2) 1 yr & (pre‑sentence custody 6 mos) (3) 1 yr & Proh Dri 3 yrs & (pre-sentence custody 6 mos) & mandatory prohibition order Sec 109 CC (4) 2 yrs & 6 mos & (6 mos pre-sentence custody) 2007-10-11 Vancouver, BC Poss of a scheduled substance for the purpose of trafficking, Sec 5(2) CDS Act (INST Kent) 90 days & (credit for the equivalent of 60 days pre-sentence custody) & probation 1 yr & mandatory prohibition order, Sec 109 CC 2007-11-26 Vancouver, BC (1) Carrying concealed weapon Sec 90(1) CC (2) Poss of a prohibited or restricted firearm with ammunition, Sec 95(1) CC (3) Poss of property obtained by crime Sec 355 CC (1-2) 18 mos consec to sent serving (3) 6 mos conc & mandatory prohibition order, Sec 109 CC [22] At the time of his arrest in February 2009, Mr. Cuthbertson was on parole and living in Ladner. As a result of being charged with the present offences, Mr. Cuthbertson's parole was revoked and he was returned to the federal penitentiary to complete his sentence. He was once again granted statutory release from federal custody on or about 17 July 2009; however, Mr. Cuthbertson did not gain his liberty. Instead he was transferred from the federal penitentiary to a provincial correctional facility pending resolution of the present charges. Impact on the Victim and/or the Community [23] The impact of firearms offences on the community is as serious as it is broad. In a recent decision of this court in R. v. Huard, 2009 BCSC 999 at para. 4 [Huard], Mr. Justice Sewell referred to the "plague of gun violence which has affected society in the past few years". I agree with that characterization of the situation. Our community is acutely aware of the dangers and consequences associated with the serious rash of firearms-related offences that has developed as of late and it rightly looks to the courts to ensure that offenders convicted of weapons offences are treated fairly but firmly. [24] The observations of Nordheimer J. at R. v. J.G., [2005] O.J. No. 4599 at para. 37 (S.C.J.) [J.G.], are apposite to the present situation: [T]he possession of a handgun by a person who is not only subject to multiple court orders against the possession of guns, but who is, at the same time, out in the community on a release that prohibits the possession of guns, would inevitably outrage even the most hardened or cynical members of this community. Legal Parameters of the Sentence [25] The maximum sentence for an offence under s. 91 of the Code is five years in prison. The maximum sentence for an offence under s. 117.01 of the Code is 10 years in prison. Sentencing Principles [26] The relevant principles the Court must consider when determining an appropriate sentence are set out in the Code. [27] Section 718 of the Code explains the purpose of sentencing as follows: 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. [28] These are more than simply words. These are the principles of sentencing that the Court must follow. [29] Section 718.1 of the Code provides that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [30] Section 718.2 of the Code requires that a sentencing judge take into account the aggravating and mitigating circumstances relating to the offence and the offender and impose a sentence that is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Submissions on Sentencing Position of the Crown [31] The Crown argues that the offender's conduct was egregious, given the time and place where he was found in possession of the firearm. Moreover, Mr. Cuthbertson's significant criminal record reflects a penchant for weapons-related offences as well as a brazen disregard for court orders. [32] Of the principles of sentencing, the Crown urges the Court to place the greatest weight on the protection of the public, denunciation, and deterrence. [33] The Crown submits that the offender's conduct demonstrates that he is well past the point of rehabilitation and therefore a significant custodial sentence is required in the present circumstances. The Crown argues such a global sentence for both offences should be in the range of five to six years. [34] With respect to credit for presentence custody, the Crown argues that although Mr. Cuthbertson obtained his statutory release on or about 17 July 2009, his warrant expiry date was not until 22 September 2009. Therefore, according to the Crown, Mr. Cuthbertson was still serving a federal sentence from July to September 2009 and is consequently only entitled to a one-for-one credit for that period of time. The period after the warrant expiry date would attract the standard double credit. [35] Under the Crown's analysis, Mr. Cuthbertson would be entitled to a credit of approximately eight months for his presentence custody. Position of the Defence [36] While acknowledging that firearms offences are serious crimes and their impact on society cannot and should not be minimized, counsel for Mr. Cuthbertson asserted that Mr. Cuthbertson's actions amounted to an egregious error in judgment in that he drove a vehicle in which there was a handgun and should have removed himself from that situation at his first opportunity. [37] The defence points to the fact that Mr. Cuthbertson had fallen back into his old ways with drugs and that his inability to address his addiction was one of the primary reasons why he found himself being arrested on these charges. [38] The defence submits that an appropriate sentence for the possession of the firearm offence is two years imprisonment with an additional one-year concurrent sentence for the breach of the prohibition order. [39] The defence also submits that Mr. Cuthbertson is entitled to ten months of presentence custody credit. In support of this position, counsel for Mr. Cuthbertson argues that but for these offences Mr. Cuthbertson would have been free in July 2009. In other words, as of July 2009, Mr. Cuthbertson was in custody only as a result of the present offences. Case Law [40] In advancing its position, the Crown relies on the following cases: Huard; R. v. Ross, 2008 BCSC 854 [Ross]; R. v. Frohock, 2008 BCSC 735, aff'd 2009 BCCA 227 [Frohock]; J.G.; and R. v. Maddigan, 2009 ONCA 269. [41] The defence relied on R. v. Budden, 2005 ABQB 859 [Budden], and R. v. Wilkening, 2007 ABPC 299 [Wilkening]. Counsel for Mr. Cuthbertson also brought to my attention the facts and sentence imposed in the case of R. v. Huck, a recent unreported decision of Mr. Justice Powers of this Court. [42] I have read all of the cases provided by counsel and I have found most of them of limited precedential value because of their factual differences from the case at bar. [43] Most of the cases cited by the Crown deal with firearms offences of a different and more aggravating nature. For example, the offender in Huard was convicted of possession of a loaded firearm contrary to s. 95(1) of the Code and was sentenced to five years in prison. In Ross, the offender was convicted of 24 counts relating to the importation of firearms. In Frohock, the offender was found guilty of multiple offences including possession of a sawed-off shotgun and possession of a loaded prohibited firearm. A similar situation arose in J.G., where the offender was convicted of a number of offences including possession of a loaded prohibited firearm. The circumstances in each of these cases justified the stiff denunciatory sentences that were imposed. [44] The cases cited by the defence are not terribly helpful either. In Budden, the offender had no related criminal record, quite unlike Mr. Cuthbertson. Moreover, Mr. Budden was not bound by multiple court orders prohibiting him from possessing restricted firearms, as Mr. Cuthbertson was. In my view, Budden is clearly distinguishable as its circumstances are nowhere near as aggravating as those in the case at bar. In Wilkening, a decision of the provincial court of Alberta, the offender was convicted of multiple firearms offences including three counts of possessing a restricted firearm and three counts of transporting a restricted weapon. Aside from the fact that the offender was a young adult, there were few other mitigating circumstances. The Crown sought a three-year global sentence and the court acceded to that suggestion. In my opinion, the sentence imposed in Wilkening was at the low end of the range for firearm offences of this nature. Perhaps the three year sentence was imposed because the Crown only sought that amount. In any event, the decision is not binding on me and I respectfully decline to adopt any portion of it in the present case. [45] Finally, although Huck apparently consists of a conditional discharge given to an offender following his guilty plea of being in a vehicle knowing a firearm was present, from what counsel have told me the facts of the case are markedly different from those before me, not the least of which is the fact that the accused was convicted of a different offence. Apparently, Mr. Huck cooperated with the police and provided evidence against his co-accused. The Crown submitted that the Court should suspend the passing of Mr. Huck's sentence and place him on probation. The defence sought a conditional discharge. No reasons for sentence were provided to me. I am informed by counsel that Mr. Justice Powers granted Mr. Huck a conditional discharge. Given the apparent differences between the present case and the one before Mr. Justice Powers, I find the sentence imposed in that case to be of little assistance in determining a fit sentence for Mr. Cuthbertson. Mitigating Factors [46] Mr. Cuthbertson apparently keeps in contact with at least one of his parents as well as his siblings and I am told they are a relatively tight-knit family. However, as I have previously mentioned, I find it odd that not one of them stepped forward to provide any sort of character reference for Mr. Cuthbertson or his prospects for rehabilitation. [47] Mr. Cuthbertson has a young son, however, I have no idea what Mr. Cuthbertson's plans are in relation to his boy. [48] I accept that Mr. Cuthbertson is remorseful for his actions. He has written a letter to the Court dated 26 November, 2009, wherein he acknowledges that his "past behaviour is inexcusable". I accept that the contents of the letter reflect Mr. Cuthbertson's genuine desire to change his ways and become a law-abiding person. Aggravating Factors [49] The aggravating circumstances of Mr. Cuthbertson's offences are numerous and readily apparent: · He was in possession of a restricted handgun when he attended at a shopping plaza during business hours where members of the public were out and about doing their shopping; · He has a significant criminal record that includes four convictions for robbery, two convictions for carrying a concealed weapon, one conviction for possession of a restricted firearm with ammunition, and five convictions for failing to abide by either a recognizance or court orders; · He had only recently been released on parole from the federal penitentiary when he committed the present offences; and · He was bound by three court orders prohibiting him from possessing restricted firearms. Reasons for Sentence [50] The Supreme Court of Canada observed in the decision of R. v. C.A.M., [1996] 1 S.C.R. 500, that the goal of sentencing is to determine a just and appropriate punishment that reflects the gravity of the offence committed and the moral blameworthiness of the offender. [51] In the circumstances of the present case, I find the protection of the public, denunciation, and deterrence to be the paramount principles of sentencing. While Mr. Cuthbertson's rehabilitation is a consideration, it takes a secondary role to the three principles I have just referenced. [52] Mr. Cuthbertson's degree of moral culpability is high. Notwithstanding what his counsel has said on his behalf, I find Mr. Cuthbertson was more than reckless in his behaviour and that it was not poor judgment on his part that led him to be in possession of the firearm. He knew he was bound by multiple orders of the court not to be in possession of restricted firearms. He also knew he was on parole for offences including a weapons offence. Nevertheless, he chose to conduct himself in a way that violated those court orders as well as the terms of his parole and, in doing so, willingly and knowingly took the risk he would be caught. I also find that his actions clearly put the public at substantial risk. [53] I find the aggravating circumstances easily outweigh the mitigating circumstances and call for a significant custodial sentence. [54] Mr. Cuthbertson has fallen into a life of crime primarily because of his addiction to narcotics. That addiction has not been beaten and to do so will take time and effort. By Mr. Cuthbertson's own words, he has not had the opportunity to address his addiction issues due to the lack of programs available to him while incarcerated. [55] As I mentioned earlier, I do accept that Mr. Cuthbertson is remorseful. However, in the circumstances of this case, I attribute limited weight to that sentiment. I have considered the contents of Mr. Cuthbertson's letter as well as the words he spoke when given the opportunity to address the Court on sentencing and, while I believe he wants to change, I find the old adage, "actions speak louder than words," is directly applicable to his current situation. He has not shown himself able to control his behaviour when given the chance. On the contrary, instead of taking advantage of his liberty and starting a new life free from crime when paroled, within a short period of time following his release, he was back to his former ways of consuming illegal drugs and being found in possession of a firearm. [56] The sentence I impose today will hopefully provide him with the time and opportunity to get the treatment he requires so that upon his eventual release he can follow the life path free from addiction and crime that he so clearly articulated in his letter to the Court. [57] Mr. Cuthbertson, you will now stand. [58] Mr. Cuthbertson, the possession of a firearm is a serious offence. The breach of the order prohibiting you from possessing a restricted weapon is equally serious. Your criminal record shows that you are no stranger to firearms. The fact that your last conviction prior to the present case included possession of a prohibited or restricted firearm with ammunition and the fact that on no less than three previous occasions you were ordered not to be in possession of restricted firearms makes your situation quite aggravated. I find your moral culpability to be at the higher end of the spectrum, as you knew the handgun was next to you as you drove through Langley and the Thunderbird Plaza parking lot, brazenly ignoring the court orders prohibiting you from possessing such a firearm. [59] You may well be able to rehabilitate yourself. Your community, including the Court and your family, hopes and expects that you do everything you can to do just that. However, until that is done, you pose a risk to the community and therefore its protection is paramount in the Court's consideration. I would also note that deterrence and denunciation are equally important. [60] I do not want to think, Mr. Cuthbertson, or speculate what might have happened if the RCMP members that day in February had walked up to the driver's side door when you were still in the vehicle with the gun at your side. The results could have been deadly for somebody, including you. [61] I therefore sentence you, Mr. Cuthbertson, to four years in prison for the s. 91(1) possession of a firearm, an additional four years concurrent on the s. 117.01 breach. By pleading guilty to the latter offence, you have acknowledged that you possessed a restricted firearm on 10 February 2009, in contravention of the court order prohibiting you from doing so. In the circumstances of this case, I find this offence as aggravating as the offence of possessing a firearm without a licence. [62] Mr. Cuthbertson, you will receive 10 months credit for the time you have spent in presentence custody. Consequently, the global sentence for both offences is four years in prison. However, deducting the credit for presentence custody, your time of incarceration in prison will be reduced to three years and two months. [63] You may have a seat. [64] Pursuant to s. 109 of the Criminal Code, I prohibit Mr. Cuthbertson for life from possessing any firearm including a prohibited and restricted firearm, any prohibited or restricted weapons, any prohibited device, any ammunition including prohibited ammunition, any explosive substance, and any crossbow. While I doubt Mr. Cuthbertson is in possession of any, Mr. Cuthbertson will be required to surrender or arrange to surrender to a peace officer any such item forthwith. A Justice of the Peace will prepare the prohibition order, provide Mr. Cuthbertson with a copy, and explain the consequences of failing to comply with the prohibition. I have every expectation that Mr. Cuthbertson now understands the consequences that flow from breaching a court order directing him not to be in possession of a restricted firearm. [65] I also order that the firearm in question be forfeited to the Langley RCMP pursuant to s. 491(1) of the Code. [66] Mr. Buziak, I will address you first. Are there any further ancillary matters that need to be addressed? [67] MR. BUZIAK: No, My Lord. [68] THE COURT: Mr. Gill. [69] MR. GILL: The victim fine surcharge should be addressed, My Lord. Mr. Cuthbertson is obviously incarcerated and has been so for, as you know, a significant period of time, and further incarcerated. So on that basis, I am going to ask the Court consider waiving that surcharge. [70] THE COURT: Mr. Buziak, do you have any submissions? [71] MR. BUZIAK: No. [72] THE COURT: Thank you, Mr. Gill, for bringing that to my attention. I agree that in the circumstances of this case, the fact that Mr. Cuthbertson is going to be serving a significant period of time in custody, I will waive the victim fine surcharge. "Gaul J."