R. v. Lundrigan

Date: 20120710 Docket: 11/86 Citation: R. v. Lundrigan, 2012 NLCA 43 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: DAKOTA LUNDRIGAN APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, Barry and Harrington JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Grand Bank, NL Appeal Heard: June 11, 2012 Judgment Rendered: July 10, 2012 Reasons for Judgment by Rowe J.A. Concurred in by Barry and Harrington J.A. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Jeffrey Summers Page: 2 Rowe J.A.: INTRODUCTION [1] This is an appeal from sentence of 14 months incarceration and 12 months probation for two break and enters into a business by a youthful first offender with mental health problems. FACTS [2] In early 2010, Dakota Lundrigan was 19 years old. He had paranoid schizophrenia, for which he was prescribed medication. At the relevant time, he had ceased to take his medication. [3] In October, 2011, Mr. Lundrigan pleaded guilty to two counts of break and enter (indictable): (1) On January 10, 2010, he broke a window with a rock at Seaside Convenience in Grand Bank and stole three bags of chips. When questioned by police, he falsely implicated someone else. (2) On February 4, 2010, he acted as a lookout while another person broke into a law office in Marystown. That person took a cash box and two cheques. [4] On October 19, 2011, a Provincial Court Judge sentenced Mr. Lundrigan to eight months for the “smash and grab” of the three bags of chips and six months (consecutive) for acting as lookout in the law firm break in. As well, Mr. Lundrigan was given 12 months probation. [5] In late 2011, the Crown agreed to Mr. Lundrigan’s release on bail pending this appeal. Early in 2012, the Crown also agreed that a report be prepared assessing Mr. Lundrigan’s mental condition. That report (dated April 24, 2012) was prepared by Cindy Elgar, a social worker. The report is supported by correspondence from: Tara Bert of the Canadian Mental Health Association; Dr. Jasbir Gill, a forensic psychiatrist; and Dr. D. F. Craig, a psychiatrist with extensive experience in correctional matters. [6] I would note certain excerpts from Ms. Elgar’s report: … Upon arrival in Marystown [in January 2010, to live with his grandparents, Mr. Lundrigan] found that his grandparents were away … He states that he felt alone and homeless and became stressed, angry and increasingly paranoid. Mr. Page: 3 Lundrigan also reports that he heard negative voices in his head which continually told him what to do and commented on all of his actions and decisions. In an effort to control these negative voices Mr. Lundrigan increased his self- medicating [alcohol and drugs] which, in turn, escalated his disorganization, self- destructive behaviours and poor judgment. Mr. Lundrigan states that all criminal behaviours happened within 1 month of leaving St. John’s. Mr. Lundrigan also maintains that he did not plan to break into any building. At that time, he perceived his actions as an attempt to survive. Mr. Lundrigan appears remorseful for the incidents. Mr. Lundrigan now states that his behaviour was completely out of control and out of character. He suggests that he was unable to think rationally and, therefore, he never considered alternative methods of handling his life situation or the consequences of his behaviours. Mr. Lundrigan maintains that he has no plan to continue to break into churches [a separate incident, not dealt with in this case] or businesses. Further, he now acknowledges that his non-compliance to prescribed medication/clinical interventions and alcohol/drug abuse only exacerbates his symptoms and made stabilization impossible to achieve. Mr. Lundrigan is currently receiving social assistance and on April 6, 2012 he moved into Lilly Building at 52 – 58 Bond Street, St. John’s, Choices for Youth program. Presently, he appears to be working towards psychiatric stability and presents to this worker as cordial and cooperative. Although psychiatric insight has been slow to attain, he does appear to acknowledge that his behaviour resulted from his altered perceptions, social isolation and poor judgment secondary to schizophrenia and alcohol/drug abuse. Mr. Lundrigan reports that, since his referral to the Court Support Services team, he has maintained follow up with his psychiatrist, Dr. J. Gill, Waterford Hospital Outpatients Department. He meets weekly with his assigned case manger, Tara Bolt, social worker with the Justice Project, and he is also working with Cathy Lewis, C-Step program, John Howard Society, on an as-needed basis. On April 23, 2012, Mr. Lundrigan applied for both the Skills Link and Youth for Future programs with the C-Step Program, John Howard Society. He is currently on wait list for both of these programs. Mr. Lundrigan maintains that he has been alcohol and drug free since his release on December 14, 2011. Moreover, there has been no known management concerns. To ensure ongoing medication compliance, Mr. Lundrigan has informed his team that he has requested switching his Risperidone oral medication to Consta, an injectable form of Risperidone, and he is currently working with Dr. Gill to make this change. … Mr. Lundrigan’s account of his personal, family and psychiatric history was confirmed by both his mother (April 10, 2012) and his grandmother (April 11, 2012). They also report that Mr. Lundrigan has been hearing voices since 13 years of age and by the age of 15 his symptoms were so severe that he was unable Page: 4 to attend school. His grandmother stated that “he was a child that never had peace of mind” and, in an effort to fit in with his peers, he tended to be a follower regardless of the consequences. Mr. Lundrigan’s diagnosis is Schizophrenia. The symptoms of his illness include: disorganization of thoughts and behaviours (erratic and irrational); paranoia (suspiciousness, ideas of persecution); psychosis (auditory hallucinations); social withdrawal; social anxiety; agitation; recklessness; impulsiveness; and poor personal/social judgment. Reports indicate that, because of the early onset and severity of Mr. Lundrigan’s illness when acutely ill, he experiences an altered sense of self and reality. Skill deficits are noted in the areas of coping, problem-solving and decision-making. Prolonged instability and drug/alcohol abuse also appear to have impacted his ability to access appropriate resources and develop and maintain healthy interpersonal relationships. Mr. Lundrigan reports that he is committed to continue with his current support network which includes: • Dr. J. Gill, psychiatrist, Waterford Hospital • Tara Bolt, case manager, Justice Project • Cathy Lewis, C-Stop Program, John Howard Society • Choices for Youth Residential Program • Family [7] From Tara Bolt’s letter, I would note the following: In March 2012, the undersigned referred Mr. Lundrigan to The Lily Building through Choices for Youth; a community-based organization in St. John’s allowing at risk youth to reside for one year by addressing lifestyle, housing, educational, and employment barriers. Mr. Lundrigan completed an interview and was accepted into the program on March 30, 2012. Since his acceptance into the Lilly Building, Mr. Lundrigan has maintained weekly contact with the undersigned and has kept all psychiatry appointments. He has also been actively seeking employment and has had several interviews in the past several weeks. The ongoing role of case management through the Justice Program will be to continue with supportive counseling, assist with community and legal appointments, and to continue arranging mental health and addictions support in the community. The undersigned continues to have weekly contact with Mr. Lundrigan and provides a supportive and counseling role to him. Mr. Lundrigan Page: 5 states he does not wish to live a lifestyle consisting of criminal activity and is open to interventions outlined by the undersigned and other professionals. It is the opinion of the undersigned that it would be detrimental to Mr. Lundrigan’s overall health and well-being if he were to be incarcerated. He has demonstrated desire to change and a willingness to accept any help that may assist him with his future goals. Residing in the Lily Building for the next year will surely give Mr. Lundrigan the tools he needs to live a non-criminogenic, productive lifestyle. [8] In her letter, Dr. Gill writes: Since engaging with him through the Mental Health Court Support Program, Mr. Lundrigan has been compliant with his medications and psychiatric appointments. [9] Finally, I would note the following from Dr. Craig’s letter: While there are undoubtedly exceptions, my experience has been that patients suffering from schizophrenia tend to fare relatively poorly in prison. This appears partly due to increased “expressed emotion” (in this case, ongoing sometimes less than pleasant contact with fellow inmates) which is known to increase the risk of relapse into psychosis. A more significant factor, in my view, is that schizophrenia renders patients with the disorder vulnerable to intimidation and/or abuse by fellow inmates. In the vernacular, if one characterizes prison life as analogous to “life in the jungle” with the more dominant/aggressive inmates being “predators” and the more vulnerable inmates being “prey”, patient/inmates suffering from schizophrenia are clearly “prey”. [10] The Crown agrees to have Ms. Elgar’s report and supporting documentation received in evidence in this appeal. [11] The Crown and Defence agree that the sentence imposed on Mr. Lundrigan was excessive, unfit and should be set aside by this Court. They disagree as to what sentence should be imposed. The Crown seeks conditional sentences of eight months for the “smash and grab” and six months concurrent for the law firm break in (less 55 days for time served). The Defence seeks time served. Both agree on 12 months probation. ISSUES [12] Is the sentence unfit? If so, what sentence should be imposed? Page: 6 ANALYSIS (a) Range of Sentence [13] In sentencing Mr. Lundrigan, the Provincial Court judge applied a sentencing range of six to 24 months for break and entry (not a dwelling) that he had set out in R. v. Cowan, [2011] N.J. No. 148. The judge stated at paragraphs 13-14 of his sentencing decision: Without repeating the review of jurisprudence which I carried out in the Cowan case, let me here simply say that breaking and entering continues to be a prevalent and serious offence here on the Burin Peninsula, despite the fact that the Courts have been consistently imposing significant periods of incarceration for the offence for many years. Sentences for break and enter offences in to places other than dwelling houses typically range from six months to two years, although there are a few cases where sentences of up to three years have been imposed for recidivists. Those exceptional cases have no application here. In the context of the range of sentence as discussed in the Cowan case, the sentence for the first of these two offences ought to be eight months, while the second, where he was a “look-out” party to the offence, may be reduced to six months. Because these were separate criminal adventures, as that phrase was used by the late Chief Justice Goodridge in R. v. Crocker (1991), 93 Nfld. & P.E.I.R. 222 (Nfld. C.A.), the sentences ought to be consecutive to one another. [14] I reject the six to 24 month range propounded by the Provincial Court judge. There are many circumstances in which a sentence of less than six months is warranted. Mr. Lundrigan is an excellent example. While paranoid and delusional, this youthful, first offender smashed a store window and made off with three bags of chips. For this, is he to receive a “minimum” of six months? No, that is not the law in this province. [15] By utilizing a sentencing range that was too high in its initial step, the Provincial Court judge committed a reversible error. (b) Circumstances of the Offender [16] The Provincial Court judge dealt with the circumstances of the offender as follows: The pre-sentence report [11] The presentence report is not positive: the accused has decided, apparently without consulting his physician, to stop taking his prescribed medication, which Page: 7 was prescribed for his schizophrenia. The accused continues to drink, lacks maturity, and lacks insight into his offending behaviour. [12] It is trite to say that, absent insight, there will be no motivation to correct a problem. Notwithstanding the accused’s issues with substance abuse, he continues to drink, and, as indicated earlier, has unilaterally discontinued his prescribed medication. These are choices within his discretion, (subject to any court order providing otherwise), but the fact that he has made these choices does not augur well for his rehabilitation. [17] The judge further dealt with the circumstances of the offender in determining that Mr. Lundrigan should not receive house arrest, but rather should be sent to prison: Where should the sentences be served? [15] While he was incarcerated, the accused completed the MIMOSA program to address his substance issues, and, with the assistance of the Justice Services Mental Health Program, was able to secure employment (with ACAN windows) and an apartment. The pre-sentence report, dated October 17, 2011, advises that the employment ended, and that he was evicted from the apartment. He subsequently found the position at Wendy’s restaurant, and is now residing with a single mother in her apartment in the east end of St. John’s. [16] According to the [Presentence Report] update, the accused appears to lack maturity, lacks insight into his offending behaviour, and the author of the report has concerns about the fact that the accused has stopped taking his prescribed medication and continues to use alcohol. These are factors which exacerbate the risk of the accused becoming involved in future criminal adventures, and which militate against a sentence to be served in the community. Accordingly, the sentences for these offences will be served in an institution. [18] In the foregoing, there is no recognition that this is a youthful, first offender. As well, the fact that this young man’s behaviour is linked to his mental illness seems to be used as an aggravating factor. [19] Regarding the first point, I would adopt what Clayton Ruby wrote in Sentencing, 7th ed (Markham, Ont: LexisNexis, 2008) at 358: 8.12 The proper sentencing of first offenders requires that the sentencing judge exhaust all possibilities before concluding that imprisonment is required: In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are Page: 8 such, or the offence is of such gravity that no other sentence is appropriate. [R. v. Stein, [1974] 15 C.C.C. (2d) 376 at 377 (Ont.C.A.)] This is consistent with section 718.2(d) and (e) of the Criminal Code, which provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”, and that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders…”. [20] Here, the Provincial Court judge rejected an option to impose a conditional sentence and allow Mr. Lundrigan to keep the job that he had. In doing so, the judge failed “to impose a custodial sentence only …where the circumstances are such or the offence is of such gravity that no other sentence is appropriate”. Instead, the judge embraced the opportunity to put a mentally ill and clearly vulnerable first offender in prison. [21] In this, the judge failed to consider Mr. Lundrigan’s mental illness as a mitigating factor; rather, he utilized it as an element in his rationale to imprison Mr. Lundrigan. [22] The approach taken by the sentencing judge is in marked contrast to the approach taken by this Court in the recent case of R. v. Edmunds, 2012 NLCA 26. That decision relied on an earlier decision of Green J.A. (as he then was) in R. v. Peters, 2000 NFCA 55, 194 Nfld. & P.E.I.R. 184: [18] Deterrence and punishment assume less importance in cases of mentally ill offenders. See R. v. Hynes (1991), 89 Nfld & P.E.I.R. 316 (NF CA). In R. v. Robinson (1974), 19 C.C.C. (2d) 193 (Ont CA) the Court emphasized that in cases where offenders commit crimes while they are out of touch with reality due to mental illness, specific deterrence is meaningless to them. Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to the commission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate in cases of persons with such mental illnesses since it would be disproportionate to the degree of responsibility of the offender. This decreased emphasis on punishment and deterrence in these circumstances is consistent with the proportionality principle in s. 718.1 of the Criminal Code. [19] Thus, the mental illness of an offender will often be considered a mitigating factor in sentencing even though it is not of the sort that would establish a verdict of not criminally responsible on account of mental disorder at the time of the commission of the offence. The focus in sentencing such Page: 9 offenders may properly therefore be placed on mechanisms that will promote rehabilitation and treatment, rather than on punishment. This is especially so where lengthy prison terms are often regarded as counterproductive, even in cases not involving the mentally afflicted. See R. v. Gladue (1999), 133 C.C.C. (3d) 385 (SCC) at p. 408. [23] The Provincial Court judge committed an error in principle in his failure to give proper effect to the fact that Mr. Lundrigan was a youthful, first offender who had not committed major offences. (In saying this, I do not mean to minimize the inconvenience and expense incurred by the store owners whose window was broken. That said, the break in at the law firm was the more serious offence.) The judge committed a further error in principle in the manner in which he dealt with Mr. Lundrigan’s mental illness. (c) A Fit Sentence [24] What then is a fit sentence? It is one that takes account of the circumstances of the offences and the offender. A key consideration is the prospect for Mr. Lundrigan’s rehabilitation. It is important to recall that the best protection for society is that the offender not re-offend. [25] In light of Mr. Lundrigan’s youth, his being a first offender, the fact that his mental illness was closely linked to the commission of the two offences and his good progress along the road of rehabilitation, I would impose the following sentence: (1) the January 10, 2010 offence (“smash and grab”) one month, given the apparent impulsive nature of the act and the relatively minor consequences; (2) the February 14, 2010 offence (lookout for the law firm break in) three months, given that this offence involved some degree of planning and combined effort; (3) as these were “separate criminal adventures”, the sentences will be consecutive; (4) the sentences to be served conditionally, with the usual terms for “house arrest”, providing for an opportunity to work; and (5) probation for 12 months. Page: 10 [26] The period of four months conditional sentence is reduced by 55 days, to take account of the time Mr. Lundrigan served in prison. Thus, his period of “house arrest” will be a little over two months. [27] Given that the sentences are consecutive, in accordance with R. v. Hutchings 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211, I must consider totality. Given the shortness of the sentence, no adjustment for totality is warranted. [28] Counsel for the Crown and Defence should seek to agree on conditions for the conditional sentence and probation. If need be, either may apply to the court to settle those conditions. [29] For the reasons set out by the Provincial Court judge in paragraphs 18-19 of his sentencing decision, I would not impose victim fine surcharges, nor order restitution; however, I would require that, pursuant to s. 487.051(3)(b) of the Criminal Code, Mr. Lundrigan provide samples of bodily substances for the DNA databank. This has probably already been done. CONCLUSION [30] Leave to appeal is granted and the appeal against sentence is allowed. The sentence is set aside and that described in paragraphs 25-29 above is substituted. M. H. Rowe J.A. I Concur: __________________________ L. D. Barry J.A. I Concur: __________________________ M. F. Harrington J.A.