R. v. Learn

2015 BCSC 815 R. v. Learn IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Learn, 2015 BCSC 815 Date: 20150316 Docket: 26238-4 Registry: Cranbrook Regina v. Cheyenne Manuel Learn Before: The Honourable Justice Dley Oral Reasons for Judgment Counsel for Crown: L.C. Swanson Counsel for Accused: B.V. Bagnall Place and Date of Trial/Hearing: Cranbrook, B.C. Place and Date of Judgment: Cranbrook, B.C. March 16, 2015 [1] THE COURT: Mr. Learn was convicted by a jury of second-degree murder. He was sentenced to life imprisonment with no eligibility for parole for 16 years. [2] Mr. Learn successfully appealed the conviction and a new trial was ordered. [3] For the re-trial Mr. Learn re-elected to be tried before a judge alone. On December 10, 2014, I found Mr. Learn guilty of second-degree murder. [4] The issue at this sentencing hearing is the length of time Mr. Learn must serve before he is eligible to apply for parole. The Crown seeks a term of 16 years and Mr. Learn argues that there should be no increase beyond the mandatory minimum of 10 years. Background Facts [5] The following facts that I found at the trial are of assistance at this hearing. [6] B.L. and Mr. Learn had lived together for about two years as of December 2007. They had separated a week or two before the shooting. [7] Mr. Learn was an alcoholic. The couple drank three to six coolers on a daily basis. On weekends their alcohol consumption increased. They did cocaine about twice a week. They both smoked a joint or two of marihuana every day. [8] B.L. had met Ms. Ellis about two weeks before the shooting of December 17, 2007. Ms. Ellis had begun purchasing cocaine from B.L. They became fast friends. They planned to live together and sell cocaine together. [9] In order to get B.L. away from the drug culture, Mr. Learn thought of calling the police, but thought better of that because he did not want B.L. going to jail. He decided instead to disable B.L.'s vehicle. He intended to shoot out the engine block and thereby prevent B.L. from being able to sell drugs, which in turn would cause her not to have the money to buy drugs for personal consumption. Mr. Learn conceded during the trial that his plan did not sound reasonable, but at the time he was intoxicated and his plan did seem reasonable. [10] Mr. Learn rode his bicycle to the house where B.L. was staying. B.L. was not there. He was about to leave when B.L. arrived. B.L. did not see anything in Mr. Learn's hands. His bicycle was standing next to him. B.L. said that she did not want to talk to him and ran into the house. She told Ms. Neelin and Ms. Ellis that Mr. Learn was outside. [11] Ms. Ellis said that she was going to put him in his place. That was the same type of language that Ms. Ellis had used before when confronting other persons. Ms. Ellis looked angry on her way out. Ms. Ellis was tough, aggressive, assertive, and impulsive. [12] Ms. Ellis returned about five minutes later and said words to the effect of, "I don't think we'll have any more problems with that asshole tonight," or "I put him in his place. I don't think he'll be bothering you again." [13] Almost instantaneously, and on the heels of that comment, the door burst open and Mr. Learn appeared. Ms. Ellis took a step towards him. They were within four feet of each other. Mr. Learn said, "Get my girlfriend hooked on crack, you bitch," or "You turned my girlfriend into a crackhead, you fucking bitch," and the gun went off. Mr. Learn turned and went out the door. The shot killed Ms. Ellis. [14] Shortly afterwards B.L. answered a call on her drug phone. It was Mr. Learn. He said, "How dare you use my love like that, you fucking bitch. You're a bunch of fucking crackheads." [15] Mr. Learn's next memory was being on the ground with his bike laying on one side of him, and the gun on the other. He could not recall if his gun was intact, but he picked it up and tossed it away. The gun was found the next morning next to a creek culvert. The gun was in pieces with the parts scattered in the immediate vicinity. The gun and its parts were readily visible. [16] The following day Mr. Learn started to walk to the police station. His brother Norm lived about two blocks from the police station so he stopped there and said that he thought someone had been shot. As a result of talking to his brother, he realized that there had been a killing. His brother was going to take Mr. Learn to the police station when he was arrested by Corporal Sullivan. [17] Mr. Learn had consumed a significant amount of alcohol prior to the shooting. Mr. Learn had been confronted by Ms. Ellis who made embarrassing, belittling, and humiliating comments to him. The comments touched upon his relationship with B.L. [18] I conclude that the amount of alcohol consumed would likely have intoxicated Mr. Learn to some degree. [19] The provocative actions of Ms. Ellis humiliated and embarrassed Mr. Learn. [20] Mr. Learn viewed Ms. Ellis as an impediment to his relationship with B.L., and the cause of B.L. descending into crack cocaine addiction. [21] There can be little doubt that Mr. Learn was angry, but his level of disturbance fell short of providing any defence to his conduct. [22] There can also be little doubt that Mr. Learn's state of intoxication, combined with the provocative actions of Ms. Ellis, contributed to the shooting. [23] However, there can also be little doubt that Mr. Learn meant to shoot Ms. Ellis when she stepped towards him. Mr. Learn intended to shoot Ms. Ellis and cause her bodily harm. [24] I have concluded that Mr. Learn knew that shooting Ms. Ellis from such close range would likely cause her death. By persisting to pull the trigger, Mr. Learn was reckless as to whether death ensued or not. [25] However, upon analyzing all of the facts, I must respectfully disagree with the position of the Crown when it is said that this case was closer to first-degree murder than to manslaughter. [26] In R. v. Bennight 2012 BCCA 461 (para. 18) the Court set out the principles applicable in parole ineligibility decisions: · Under s. 745.4 of the Criminal Code, the sentencing judge must consider the character of the offender, the nature of the offence, the circumstances surrounding the commission of the offence, and the recommendation of the jury (if any). · The general sentencing principles of denunciation and deterrence and the judge's assessment of the offender's future dangerousness are relevant factors: R. v. Shropshire, [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193. · Parole ineligibility greater than 10 years is justified when there is some particularly aggravating feature: Cerra, at para. 17 (per Donald J.A.). · There are two broad groupings of cases where parole ineligibility is extended beyond 10 years: parole ineligibility periods from 12 to 15 years and parole ineligibility periods from 15 to 20 years. The latter group of cases relates to cases at the highest order of moral culpability or dangerousness: Cerra, at para. 26 (per Donald J.A.). · The possibility of a parole ineligibility period greater than 20 years remains in exceptional circumstances: Cerra, at para. 36 (per Ryan J.A.). · Orders extending the period of parole ineligibility are highly discretionary and are part of the sentence pursuant to s. 673 of the Criminal Code. Such orders are therefore appealed pursuant to s. 687(1). An appellant court should only interfere with a trial judge's sentencing order if the court is convinced it is not fit or it is clearly unreasonable: Shropshire, at paras. 47-48. · The wide discretion granted to sentencing judges is fettered by the case law and general ranges of sentences for particular offences. However, while courts must consider ranges, they are guidelines rather than strict rules. A sentence outside the regular range is not necessarily unfit, if it is in accordance with the principles and objectives of sentencing: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 44. · Similarly, the two groups of parole ineligibility cases described in Cerra are intended as guidelines, not as binding categories within which a particular case must be placed: R. v. White, 2011 BCCA 328 at para. 24. [27] In this instance, the sentencing judge at the first trial set the parole ineligibility at 16 years. The jury had recommended 20 years. The parole ineligibility determination at a previous trial is a factor for a subsequent sentencing judge to consider. If it is considered that the first sentence was fit, then that same sentence may be imposed. The emergence of new facts may result in a different finding: R. v. Vandeindhoven 2013 NUCJ 30 at para.65. [28] However, I would also say that a judge on the second trial may have a different view of the facts, even though generally the same evidence may have been presented. Where there is a different view of the facts, the sentencing judge must be guided by those different findings. To do so otherwise would ignore the principle that sentencing is a fact-sensitive exercise: R. v. Shropshire 1995 4 S.C.R. 227 at para. 18. Therefore, there is no reason where there is a different view of the evidence to simply impose the same prior sentence. [29] If the sentences differ, that does not mean that the initial sentence was unfit; only that there has been a different view of the factors set out in s. 745.4 That would be the case regardless if the sentence was increased or decreased. [30] With respect, I do not share the same view of the facts as the previous judge. In particular, it is not my view that Mr. Learn's actions were motivated by a desire to control B.L. Mr. Learn's actions were horribly misguided, but they were motivated by his caring for B.L., and the desire to salvage the relationship. [31] I also have the benefit of hearing about the rehabilitation measures that Mr. Learn has taken. As a result, I do not need to consider whether the previous sentence was fit or not. [32] The principles and objectives of sentencing are set out in s. 718 of the Criminal Code and they require the Court to: (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. [33] Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. [34] Section 718.2 requires that a Court imposing a sentence should also take into account 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 , and (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [35] The circumstances of this offence require that denunciation and deterrence be emphasized. The protection of society is of overriding importance. At the same time, the court must always exercise restraint in sentencing. [36] In these circumstances, rehabilitation is subservient to denunciation and deterrence, but it can be considered, provided public safety is not compromised. [37] Mr. Learn has a criminal record that ranges from 1978 to 1997. It contains 23 convictions covering offences that include impaired driving, assault with a weapon, and possession of a firearm while prohibited. Mr. Learn has five alcohol-related driving convictions. The longest custodial sentence was in 1986 when Mr. Learn received 18 months for assault with a weapon, possession of a firearm while prohibited, and pointing a firearm. Mr. Learn's criminal record is serious. [38] Even though there is a 10-year gap from Mr. Learn's last conviction until the date of this offence, I do not consider the record to be dated. Where there has been a long gap between the last conviction and the present offence, usually the record is not given much weight: R. v. Whitman 2006 BCSC 865, at para.26. [39] It cannot be said that Mr. Learn has reverted to a life of crime after the gap, but the use of a firearm in committing this murder is so closely connected to some of the prior offences that they cannot be relegated to a lesser factor. The result is that the record is to be given weight. It is an aggravating factor. [40] Mr. Learn was familiar with guns. He was a hunter and comfortable handling firearms. He was aware of the dangers associated with carrying loaded guns. That is an aggravating factor. [41] Although killing was not his initial intention when he went to the house that B.L. was staying with others, Mr. Learn went there to cause damage. His persistence in going to cause damage with a loaded gun in an intoxicated state is an aggravating factor. [42] Mr. Learn's caustic comments over the phone to B.L. after the shooting displayed an indifference to the reality that he had just shot Ms. Ellis at close range. The indifference is an aggravating factor. [43] I do not consider Mr. Learn's disposal of the gun to be an aggravating factor. The scattering of the parts was obvious for discovery. There was no attempt to surreptitiously conceal the weapon. [44] Mr. Learn intended to turn himself in to the police. He was cooperative with the arresting officer. Corporal Sullivan described Mr. Learn as a pleasure to deal with. During the investigation, Mr. Learn was visibly distressed that he had caused the death of another human being. Mr. Learn was remorseful then, and he has expressed genuine remorse at this sentencing hearing. Mr. Learn acknowledges that his conduct was reprehensible and deserving of condemnation. Those are mitigating factors. [45] Mr. Learn has always acknowledged his responsibility for the killing by agreeing that he was guilty, at least of manslaughter. During this trial, Mr. Learn made admissions that allowed the trial to focus on matters that were contested; that is, whether this was a crime of second degree murder or manslaughter. Those are mitigating factors. [46] Although rehabilitation takes a secondary role under these circumstances, nonetheless it is a matter to consider. To not consider rehabilitation would take away all the incentive for a prisoner to take steps to address shortcomings and the prospects for successful reintegration into society. [47] Mr. Learn has undertaken educational measures to better himself and to assist other inmates in their transition back into society. Mr. Learn has successfully attained the position as a clerk for the John Howard Society. Mr. Learn has been clean and sober. He has taken advantage of the resources provided through Alcoholics Anonymous and Narcotics Anonymous. Those are mitigating factors. [48] Mr. Learn has received strong support from friends and family. The letters that have been provided on his behalf are insightful. They do not ignore the terrible tragedy that has unfolded at the hands of Mr. Learn. The letters do not excuse his conduct or otherwise attempt to rationalize his crime. The support recognizes the enormity of Mr. Learn's crime, but nonetheless there is a strong sense that this was out of character and an isolated incident. [49] I have read the victim impact statements. It is apparent that the death of Ms. Ellis has caused immense hurt, distress, and pain to friends and family. The horror of what occurred continues to haunt Ms. Neelin, who was merely an innocent bystander. [50] Taking all of these circumstances into account, I conclude that in these circumstances there must be an additional period of parole ineligibility. Mr. Learn's prior record is a major factor in tipping the balance in favour of an increased period so as to protect society. [51] Where there is an increase to be imposed there are generally two broad categories of cases, 12 to 15 years, and 16 to 20 years. As I have said, the lengthier group is reserved for those cases at the highest order or moral culpability or dangerousness: Bennight at para. 14 and R v. Cerra 2004 BCCA 594 at paras.17-26. [52] This was not, as described by Crown Counsel, tantamount to a cold-blooded execution. In making the comments that I do, I am not in any way justifying Mr. Learn's conduct. It cannot be justified in any way. However, this killing was fueled by alcohol, a troubled romantic relationship, and anger over very personal insults. Mr. Learn was in a somewhat disturbed condition and in a heightened emotional state. None of these factors provide an excuse, but they do provide some understanding of what and why the crime occurred. [53] This was an isolated incident where a constellation of factors came together to cause and result in a murder. I have been provided with a number of cases, which have been of immense assistance in setting out the range and the circumstances within which the individual sentences have been imposed. This sentence, while specific to the facts of this case, must also be consistent with the jurisprudence in this area. [54] Mr. Learn's character, the nature of the offence, and the circumstances surrounding the commission of the offence, do not place this case within the upper range of 16 to 20 years of ineligibility. [55] Here, there is a significant potential for rehabilitation. Simply because Mr. Learn is not a young person, does not default to the notion that rehabilitation is no longer a factor to consider. As Mr. Learn has so eloquently said, age should not discourage rehabilitation. [56] Mr. Learn is 55 years old. He has spent the last seven years in jail. As he grows older the years will become more precious. It is apparent that Mr. Learn appreciates that he has to change his behaviour if he is not to be considered a danger to the public. He has taken steps to accomplish that and those steps have influenced me favourably in setting the sentence. [57] I am mindful that regardless of all other factors, the principles of denunciation and deterrence are to be the overriding factors. Sentence [58] Mr. Learn, would you stand, please? [59] Mr. Learn, you are now sentenced to life in prison, without eligibility for parole, until 12 years have expired from when you were taken into custody. [60] Pursuant to the provisions of s. 109 of the Criminal Code, you are subject to a lifetime firearms ban. [61] This is primary designated offence for which you are required to provide a sample of your DNA for registration in the national databank. That DNA sample must be provided within 30 days from today's date. [62] All of the exhibits in this case will be forfeited to the Crown for destruction or return to their lawful owners. "S.D. Dley J." DLEY J.