R. v. Geoghegan

2023 BCSC 1643 R. v. Geoghegan

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Geoghegan, 2023 BCSC 1643 Date: 20230907 Docket: 71761 Registry: Chilliwack Rex v. David Allen Geoghegan Ban on Publication: Pursuant to s. 648(1) of the Criminal Code, R.S.C. 1985, c. C-46. This ban restricted the publication, broadcasting or transmission, in any way, of any portion of the trial at which the jury was not present. The publication ban applied until the jury retired to consider its verdict. Before: The Honourable Mr. Justice S. Dley (Appearance via videoconference) Oral Reasons for Sentence Counsel for the Crown: M.R. Rygus S.H. Quendack Counsel for the Accused: S.R.A. Buck, K.C. V. Aldosky Place and Date of Trial/Hearing: Abbotsford, B.C. August 21, 2023 Place and Date of Judgment: Abbotsford, B.C. September 7, 2023 [1] THE COURT: On April 25, 2023, a jury found David Allen Geoghegan ("Mr. Geoghegan") guilty of kidnapping and manslaughter. The victim was Jordan Smyth ("Mr. Smyth"). [2] Before determining the extent of a just and fit sentence, the facts underlying the offences must be established.

FINDING OF FACTS [3] Section 724(2) of the Criminal Code of Canada sets out the procedure for fact-finding in the case of a jury trial. It states: Where the court is composed of a judge and jury, the court (a) shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty; and (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. [4] This Court is bound by the express and implied factual implications of the verdict, but if the factual implications are not clear, then a determination must be made of the facts. In making that determination, this Court is not to try and follow the jury's reasoning but may make an independent finding of the relevant facts. A fact that is consistent only with a verdict rejected by the jury must also be rejected: R. v. Ferguson, 2008 SCC 6, at paras. 15 to 22. [5] The findings of fact do not necessarily require that the accused be given the most favourable view of the evidence: R. v. Ward, 2009 BCCA 409. [6] I conclude that the express and implied factual implications of the verdict are as follows. [7] Mr. Geoghegan and Mr. Smyth were housed in the same unit at the Surrey Pretrial Services Centre ("Surrey Pretrial"). They were part of a drug-smuggling scheme whereby Mr. Smyth was to bring drugs into

the facility. [8] Mr. Smyth was released from Surrey Pretrial on October 23. Ms. Loewen was to supply the drugs that Mr. Smyth would secrete in his body, get himself arrested and when returned to Surrey Pretrial, the drugs would be sold to other inmates. Mr. Smyth was supplied with the drugs, but he had a change of heart. He used some of the drugs and did not return to prison. [9] A number of telephone calls involved Mr. Geoghegan from Surrey Pretrial were recorded. It was apparent that he was becoming frustrated with Mr. Smyth's reticence to follow through with the plan. Mr. Geoghegan made it plain to Mr. Smyth that he was to adhere to the smuggling scheme. Mr. Smyth did not. [10] Mr. Geoghegan was released from Surrey Pretrial on October 31. One of his conditions was to reside at Joshua House. Despite those conditions, Mr. Geoghegan decided to leave Joshua House that evening. [11] Darius Commodore ("Mr. Commodore"), Ms. Killoran-Roy, and Ms. Jones came to Joshua House in a stolen Jetta and picked up Mr. Geoghegan. Mr. Commodore had a shotgun which he fired as they were leaving that area. An expended shotgun shell located at Joshua House was determined to have been fired from the same gun that discharged shells located inside the Jetta and at the crime scene. [12] Mr. Commodore knew that Mr. Smyth was staying at the Sims' apartment. Mr. Commodore had been there earlier that

day with respect to a $40 debt that Mr. Smyth owed him. [13] Messrs. Geoghegan and Commodore went into the Sims' apartment where Mr. Smyth was found hiding in a bedroom closet. They took his money and the drugs that were left. [14] Mr. Geoghegan did most of the talking. He expressed his concerns about Mr. Smyth failing to follow through with his end of the smuggling scheme and that he would need to break into a jewellery store to pay off the value of the drugs he had consumed. [15] While at the apartment, Mr. Commodore placed Mr. Smyth into a headlock. Mr. Sims described Mr. Commodore as a hothead, whereas Mr. Geoghegan was calm and polite. [16] The Crown has conceded that there was insufficient evidence to convince the jury that Mr. Commodore had brought a shotgun into the apartment. [17] Mr. Sims testified that Mr. Smyth willingly went with the others. I conclude that, although Mr. Smyth did not put up any resistance, he had no choice but to accompany Messrs. Geoghegan and Commodore. [18] Once in the car, Mr. Geoghegan drove with Mr. Smyth seated behind him and Mr. Commodore in the middle. Mr. Commodore proceeded to beat Mr. Smyth and affixed zap-straps on his wrists. Mr. Geoghegan drove to Pepé's place where he and Mr. Commodore went inside to sell and do some drugs. The offence of kidnapping was complete and continuing. [19] They returned about 45 minutes later and Mr.

Geoghegan drove to the secluded gravel pit. There, Mr. Geoghegan defecated, had a smoke with Mr. Smyth, and cut off the zap-straps. [20] Mr. Geoghegan has testified that he had no idea that Mr. Commodore was going to shoot Mr. Smyth. He says that Mr. Commodore fired four shots. Two struck Mr. Smyth in the forearms. Mr. Smyth was still making noise, so Mr. Commodore shot him in the head. [21] I infer from the jury's verdict that Mr. Geoghegan did not shoot Mr. Smyth. [22] Mr. Snowden testified that, within a day or two of the killing, Mr. Geoghegan told him that he and Mr. Commodore had both shot Mr. Smyth and that Mr. Commodore had got down on one knee and shot him in the head. Mr. Snowden was not an impressive witness. He was not sure that Mr. Geoghegan had said that they had both shot Mr. Smyth. [23] However, some aspects of Mr. Snowden's evidence are consistent with the evidence of Ms. Loewen, who said that Mr. Geoghegan told her that he and Mr. Commodore had roughed up Mr. Smyth, taken care of business, shot him, and left him there. She said that Mr. Geoghegan told her that he had shot Mr. Smyth, and then Mr. Smyth was grabbed and business taken care of because of disrespect and for stealing the drugs. [24] Ms. Loewen was a Vetrovec witness [with reference to R. v. Vetrovec, [1982] 1 S.C.R. 811, 1982 CanLII 20]. Some of her evidence was confirmed by Mr. Snowden when he said

that both Mr. Geoghegan and Mr. Commodore shot Mr. Smyth. There is no question that Mr. Smyth was shot. [25] Even though Ms. Loewen was a Vetrovec witness, her evidence was reliable and credible with respect to what Mr. Geoghegan told her. Her evidence that Messrs. Geoghegan and Commodore had roughed up Mr. Smyth, taken care of business, shot him, and left him there is entirely consistent with a common sense view of the evidence, including the testimony of Mr. Geoghegan. [26] I, therefore, conclude that Mr. Geoghegan and Mr. Commodore were acting as co-principals when they kidnapped Mr. Smyth. Mr. Geoghegan intended to rough up Mr. Smyth and leave him with a message that he was not to have taken the drugs that were destined for jail. The message was to be delivered in a manner that was to inflict serious bodily harm as a foreseeable consequence of the common unlawful purpose of kidnapping. [27] The jury was instructed that if there was no intent proven for the offence of murder, a conviction could be considered for manslaughter. The jury was instructed as follows: So that you will understand the essential elements the Crown must prove, I will repeat them once again: 1) first, the Crown must prove that Mr. Geoghegan and Mr. Commodore formed an intention in common to carry out the unlawful purpose of kidnapping and to help each other carry out that unlawful purpose; 2) second,

the Crown must prove that Mr. Commodore committed the offence of murder; 3) third, the Crown must prove that Mr. Commodore committed the offence of murder while carrying out the unlawful purpose of kidnapping; and 4) fourth, the Crown must prove that Mr. Geoghegan knew that the commission of the offence of murder by Mr. Commodore would be a probable consequence of carrying out the unlawful purpose of kidnapping. You must be satisfied that the Crown has proven each of these elements beyond a reasonable doubt before you are allowed to convict Mr. Geoghegan of second degree murder. If you are satisfied that the Crown has proven the first three elements beyond a reasonable doubt, but you have a reasonable doubt as to the fourth element (whether Mr. Geoghegan knew that the murder of Mr. Smyth by Mr. Commodore would be a probable consequence of carrying out the common unlawful purpose of kidnapping), you may convict Mr. Geoghegan of manslaughter if you find, in all of the circumstances, that a reasonable person would have appreciated that bodily harm which is neither trivial or transitory to Mr. Smyth was the foreseeable consequences of the common unlawful purpose of kidnapping. [28] Dr. McKinnon said that Mr. Smyth was struck by three shots all fired from within 12 inches. The wound to the right forearm was indicative of a defensive posture taken by Mr. Smyth. The most fatal shot

was the shot to the head. [29] I accept Ms. Loewen's evidence as to the details that were told to her by Mr. Geoghegan. He dealt with Mr. Smyth because of disrespect and for stealing the drugs. Mr. Geoghegan's description of Mr. Commodore getting down and shooting Mr. Smyth in the head is consistent with what he told Mr. Snowden and his own testimony. [30] Mr. Geoghegan testified that he heard someone running and then shots fired. His version must have been accepted by the jury, otherwise he likely would have been found guilty to being a party to murder. His version is also consistent with Mr. Commodore having the gun earlier and acting as a hothead. I, therefore, conclude that, although Mr. Geoghegan was present and engaged in the common unlawful purpose of kidnapping, he did not shoot Mr. Smyth. [31] It is apparent from the jury's verdict that it was not convinced that Mr. Geoghegan knew Mr. Commodore was going to kill Mr. Smyth. However, I am satisfied that in the circumstances, Mr. Geoghegan appreciated that bodily harm to Mr. Smyth that was neither trivial or transitory was the foreseeable consequence of the common unlawful purpose of kidnapping. [32] In summary, I conclude that Mr. Geoghegan was part of the drug-smuggling scheme. He was determined to convince Mr. Smyth that he was to return to prison with drugs for distribution. Mr. Geoghegan was the decision-maker in

going to the Sims' apartment and getting Mr. Smyth. Mr. Geoghegan was the decision-maker with respect to finding Mr. Smyth, convincing him to leave the Sims' apartment, and driving Mr. Smyth to the gravel pit. Mr. Geoghegan did all of the talking. [33] I conclude that the actions of Mr. Geoghegan and Mr. Commodore made it apparent to Mr. Smyth that he had no choice but to accompany them out of the Sims' apartment. The kidnapping began at that point and continued through to the gravel pit. [34] Mr. Geoghegan knew that Mr. Smyth was restrained by zap-straps and beaten by Mr. Commodore. Other than some verbal objections, Mr. Geoghegan did not intercede to assist Mr. Smyth. [35] I am also convinced that Mr. Geoghegan knew that there was a reasonable likelihood that serious harm would come to Mr. Smyth in the circumstances, as they were en route to and at the gravel pit. I am not convinced that Mr. Geoghegan knew that Mr. Commodore would kill Mr. Smyth. [36] Those are the facts that support the convictions for kidnapping and manslaughter and upon which this sentencing shall be based.

SENTENCING PRINCIPLES [37] The principles and objectives of sentencing are set out in s. 718 of the Criminal Code, and they require the court: (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 or to the community. [38] Section 718.1 requires that a sentence must proportionate to the gravity of the offence and the degree of the responsibility of the offender. [39] Section 718.2 requires that a court imposing a sentence shall also take into consideration 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 (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the

circumstances of Aboriginal offenders. [40] The circumstances of this offence require that denunciation and deterrence be emphasized. At the same time, the court must always exercise restraint in sentencing and keep rehabilitation in mind. [41] Sentencing is an individualized process. Each offender must be sentenced in the particular circumstances of the offence committed and the particular circumstances of the offender. [42] Other cases are of assistance to ensure that there is parity in sentencing, but the range of sentences must not be so rigidly applied so as to eliminate the individualized nature of sentencing.

GLADUE CONSIDERATIONS [43] The Gladue report [with reference to R. v. Gladue, [1999] 1 S.C.R. 688 (S.C.C.)] does not show that Mr. Geoghegan is an Aboriginal man. Although he has provided some information stating his belief that he has an Indigenous heritage, there is a lack of proof to show that likelihood. There is no record of his mother being Aboriginal or any other evidence that might lend itself to such a determination on a balance of probabilities. I infer from the comments of the Gladue writer that he was not convinced that Mr. Geoghegan had an Aboriginal heritage. [44] To accept the comments of an offender as to Aboriginal heritage without more does a disservice to the importance of Gladue considerations. Gladue considerations are not meant to be diluted. They are an important part of an individual's circumstances that the court must consider. However, Gladue principles do not apply to everyone. [45] The court must consider all factors for a non-Aboriginal offender as it relates to his or her personal circumstances. Where offenders have experienced a chaotic or disadvantaged upbringing, that must be considered regardless of their heritage. [46] Even though Mr. Geoghegan has not shown that he is an Aboriginal person, I must still consider all of the comments and information provided in the Gladue report. It provides much of what would be contained in a presentence

report. MR. GEOGHEGAN'S PERSONAL CIRCUMSTANCES [47] Mr. Geoghegan is 33 years of age, single, and without dependents. The Gladue report is helpful in setting out his background so that the court can understand the background relevant to his offending behaviour. Mr. Geoghegan outlined what he described as a "dysfunctional and chaotic upbringing defined by instability, lack of parental capacity, violence, and parental substance misuse." He grew up in Whitehorse, without much parental supervision. His father was violent towards him and he was abused by other family members. He began to use drugs at an early age. [48] Mr. Geoghegan transitioned through a number of foster placements where older residents also physically abused him. He aged out of foster care at the age of 18 and, without basic life skills, began selling drugs as a means of survival. Since then, he has been regularly incarcerated in both federal and provincial institutions. [49] The Gladue report identifies that there are a number of adverse factors that affect Indigenous people which are apparent in Mr. Geoghegan's circumstances including: · Familial Instability; David's formative environment was reportedly defined by his exposure to chronic parental substance misuse and violence; in turn, these experiences imparted to him maladaptive decision-making processes, values, and interpersonal communications which were

internalized as being normal. Removed from home at the age of 10, David began consuming alcohol and illicit substances as a coping mechanism to deal with the unresolved emotional manifestations of his familial and social alienation. These issues rapidly escalated, and remained relatively static throughout his youth and adult life. Concurrently, while immersed in his polysubstance addictions, David has continued to associate with negative peers and engage in a dysfunctional lifestyle with impact on his health, interpersonal relationships, and liberty; this continued and was evident when he was arrested for the index offence currently before the Court. · Involvement with the Ministry of Children and Family Development. · Low educational achievement and vocational marginalization. [50] Mr. Geoghegan has a lengthy criminal record beginning as a youth in 2004. The adult record includes: i) six failures to comply; ii) two entries for possession of property obtained by crime over $5,000; iii) arson; iv) two entries for assault causing bodily harm; v) two entries for dangerous operation of a motor vehicle; vi) unlawfully at large; vii) possession of a prohibited or restricted firearm with ammunition; viii) possession of a scheduled substance for the purpose of trafficking; ix) two entries for possession of a scheduled substance; x) flight while pursued by a peace officer; xi)

possession of a firearm or ammunition contrary to a prohibition order; and xii) assaulting a peace officer. [51] The longest jail sentences that Mr. Geoghegan has received for the most serious offences are as follows: a) 2010 - Whitehorse: arson with disregard for human life: 18 months and 6 months consecutive for assault causing bodily harm; b) 2013 - Port Coquitlam: assault causing bodily harm and assault peace officer: 6 months for each offence; c) 2014 - New Westminster: possession of a prohibited or restricted firearm with ammunition: 3 years; d) 2018 - Chilliwack: possession of a scheduled substance for the purpose of trafficking: credit for the equivalent of 6 months presentence custody; and e) 2020 - Surrey: flight while pursued by a peace officer: 12 months and credit for the equivalent of 9 months presentence custody for dangerous operation of a conveyance.

AGGRAVATING AND MITIGATING CIRCUMSTANCES [52] I must consider the aggravating and mitigating circumstances. [53] The aggravating circumstances are as follows: 1. Mr. Geoghegan was actively involved in a scheme to smuggle drugs into the Surrey Pretrial Centre through his exhortations to Mr. Smyth to return to prison with the drugs.

2. Mr. Geoghegan had just been released from custody on court-ordered conditions which included a requirement that he reside at Joshua House. He breached that condition almost immediately and proceeded to take steps associated with the drug-smuggling scheme.

3. Mr. Geoghegan knew that there was a loaded shotgun in the Jetta that picked him at Joshua House.

4. Mr. Smyth was taken from the safety of a residence under compulsion to commit the further criminal offence of robbing a jewellery store to pay off his drug debt.

5. Mr. Smyth was unarmed and defenceless.

6. Mr. Smyth's kidnapping was done within an illegal drug-smuggling scheme and the events occurred in "the context of self-help violence in the drug subculture": R. v. Fabas, 2017 BCSC 1693 at para. 35 [Fabas].

7. Mr. Smyth's kidnapping was in circumstances where he was restrained by zap-straps and beaten.

8. Kidnapping is a serious underlying offence that led to Mr. Smyth's death.

9. Although Mr. Commodore was the one who beat their victim, Mr. Geoghegan did not intercede to stop the violence or otherwise assist Mr. Smyth.

10. Mr. Smyth was left to die in a remote location with no opportunity for assistance.

11. Mr. Smyth's death and the surrounding circumstances have had a devastating impact on his family, friends, and his two young children. It was apparent from the victim impact statements that the violence inflicted upon Mr. Smyth continues to haunt his survivors.

12. Mr. Geoghegan has a lengthy record with numerous entries for failing to comply with orders or conditions, as well as prior convictions for violent offences. [54] The mitigating circumstances are as follows: 1. Mr. Geoghegan has taken some steps towards rehabilitation. He completed a Life Skills program in November 2022 and has expressed interest in addressing his substance abuse issues. Considering the amount of time that he has spent in custody, those achievement are rather modest, but nonetheless a step in the right direction.

2. Mr. Geoghegan has received a positive endorsement for his participation in Indigenous Services at Surrey Pretrial and as a candidate for healing or recovery programs.

3. Mr. Geoghegan has had a troubled and chaotic upbringing. He has not enjoyed the opportunities available to most members of society to build his life skills. He falls within the mitigating nature of unique systemic or background factors described in R. v. Ipeelee, 2012 SCC 13, at para. 73, as "situations of social and economic deprivation with a lack of opportunities and limited options for positive development".

4. Mr. Geoghegan has expressed remorse for what occurred. He spoke directly to the victim's family and apologized for what occurred.

DISCUSSION OF SENTENCE [55] Although the offences are distinct and discrete, they occurred within the same transaction, that is, the foreseeable consequences arising out of the common unlawful purpose of kidnapping. The sentences to be imposed are for each offence, but the same sentencing principles are applicable to both offences. [56] In determining the appropriate sentence, the offender's degree of blameworthiness is critical to the analysis: R. v. Plowman, 2015 BCCA 423, at para. 39. [57] With respect to the kidnapping, Mr. Geoghegan's moral culpability is high. He was the one who was forceful with Mr. Smyth during the intercepted calls from Surrey Pretrial. He was the one who was the catalyst for the trip to the Sims' apartment and he directed what occurred there. He was the person looking to collect on the drug debt. There can be no question that Mr. Geoghegan was in charge of the kidnapping. But for the kidnapping, the opportunity for the offence of manslaughter would not have arisen in these circumstances. [58] Mr. Geoghegan's culpability for the manslaughter conviction is on the upper side of the midpoint range between accident and near murder. He did not possess the gun and there was no plan that he was aware of to shoot Mr. Smyth. Nonetheless, he was the directing mind of the enterprise and his actions were the catalyst and provided the opportunity for the shooting

to occur. [59] The gravity of the kidnapping offence is to be assessed in the context of various factors. In R. v. Brar, 2014 BCCA 175, the Court set out those factors: [23] Kidnappings do not fall into distinct categories. However, the jurisprudence identifies multiple criteria that are indicative of the gravity of the offence on a spectrum, including: a) the purpose of the kidnapping, specifically whether it is carried out for ransom or as a means of extorting a payment or repayment from the victim; b) the extent to which there is planning and premeditation; c) the length and conditions of the confinement; d) the extent to which there is violence, torture or significant physical injuries; e) whether third parties are threatened; f) whether guns are used; g) whether there is gang involvement; h) whether the kidnapping occurs in the course of the commission of another offence; and i) the circumstances in which the kidnapping ends. [60] The gravity of Mr. Geoghegan's involvement in the kidnapping places him at the upper end of the Brar spectrum. [61] The purpose of the kidnapping was to repay a drug debt arising out of a scheme to smuggle drugs into prison. There was planning and premeditation. Mr. Geoghegan left Joshua House and went directly to where Mr. Smyth was staying. There was no choice but for Mr. Smyth to accompany the men who were attending to collect the debt. The

period of confinement was relatively short, but comprised of zap-strap restraints and beatings. Although Mr. Smyth was not accosted at gunpoint, there was a loaded gun in the vehicle. The drug debt was incurred at the behest of a group of inmates, although it would not be a "gang enterprise" as that term is commonly use. The kidnapping was intended to result in the commission of another crime. Mr. Smyth was supposed to rob a jewellery store and turn over the proceeds to Mr. Geoghegan. The end of the kidnapping was brutal and tragic. Mr. Geoghegan's partner in the kidnapping enterprise shot and killed Mr. Smyth. [62] I have reviewed all of the authorities provided by counsel. They are helpful in setting out the broad range of sentences and address the issues of parity. I do not intend to comment on each case, as each case is decided on its own particular facts and circumstances. I will refer to the cases that I find to be most helpful in setting the sentence here. [63] In arguing that the appropriate sentence falls within a range of sentence of 10 to 12 years, the Crown refers to the following cases: 1. R. v. Cox, 2019 BCSC 1707: the court imposed jail sentences from 12 to 18 years for six offenders who were parties to the offences of kidnapping, extortion, aggravated assault, and manslaughter. The parties had planned a home invasion where two victims were killed in the process

of the kidnapping. The shooter was not identified and there was no proof that the parties were aware that one of them had a gun. The moral culpability for the manslaughter was in the midrange, but high for the kidnapping. The sentences varied depending upon the personal circumstances of the respective offenders. The facts in Cox were more aggravated than here. There was more violence and a longer period of confinement.

2. R. v. McLeod, 2008 ABCA 31: the Court sentenced the offenders for their roles in a manslaughter where they planned to beat a police informer for money. During the event, an unintended victim was shot to death. The offenders had no forewarning of that and they had not intended to harm the actual victim. The Court concluded that the offence was midway between accident and near murder and the moral blameworthiness was in the middle range. The offenders were sentenced to 11 years and 6 months and 9 years and 6 months, respectively. There, the facts showed no conviction for kidnapping and an absence of a finding that the offenders were at the high end of the spectrum for moral culpability.

3. R. v. Smith, 2022 ONSC 3800: the offender was convicted of manslaughter when three masked men shot the victim in his home. It was not known who had fired the shot. The offender was found guilty as a party. The court concluded that the parties had engaged in a common unlawful purpose where bodily harm was objectively foreseeable. This was a carefully planned offence, but it was not clear that violence was part of the plan. The offender had a large supportive family and a positive upbringing. He had a limited criminal record, largely related to the administration of justice offences rather than crimes of violence. He was sentenced to 9½ years in jail. In that case, the offender had the advantage of support in the community and a positive upbringing, but the absence of a record such as the one exhibited by Mr. Geoghegan. [64] In arguing that the appropriate sentence should be set at 6 years, the defence has included the following cases: 1. R. v. Peynado, 2011 BCCA 524: The offender had pled guilty to manslaughter for his role in a home invasion to recover funds and resulting in the stabbing death of one of the occupants. The offender had carried a metal pipe and imitation firearm to the scene. He tied up one of the occupants and threatened and assaulted that person. In the meantime, one of the others repeatedly stabbed and killed another occupant. Even though he had organized

the invasion, the offender expressed shock and began to hyperventilate when told of the killing. In that case, the offender had no criminal record and tendered letters of support at the sentencing hearing. The sentence of 11 years was reduced on appeal to 9 years because the sentencing judge had failed to give sufficient weight to rehabilitation and the offender's limited role in the death. The Court commented that the range of sentence for a manslaughter committed in the course of a home invasion was four to nine years where the offender had no criminal record and/or played no role in the death. The defence argues that the offence of a home invasion resulting in a death is similar to a kidnapping which results in a death. In both, the victim is dominated during the underlying offence. I agree with that proposition.

2. R. v. Grattan, 2011 BCSC 217: The offender pled guilty to manslaughter, aggravated assault, and robbery. He and three others planned a home invasion. The offender entered the residence after one of the other intruders had shot an occupant and assaulted another. The offender saw what was occurring, searched a different part of the house, and took some valuables. Another person came to the house and he was killed. The offender did not participate in that shooting. The offender was in his early 20s, with a history of serious drug use and a record which contained a number of entries for possession of stolen property, possession of drugs, and a drug-trafficking conviction. He received a 9-year sentence.

3. R. v. Gilpin, 2022 BCSC 658: The offender received a six-and-a-half-year sentence for manslaughter where he fired three shots at his sleeping victim. Gilpin is distinguishable because he had no criminal record and was too intoxicated to form the intent for murder or the intent when he disposed of the body and other evidence.

4. R. v. Fabas: The offender pled guilty to manslaughter. The offender was inside a residence when there was an aggressive attempt to enter it by the victim. The offender fired three shots at the victim, one of which was the fatal shot. He was sentenced to 6 years. Fabas was addicted to drugs, with a criminal record, but no convictions for violence. He was remorseful. He had been using heroin prior to the offence. In mitigation, the trial judge noted the guilty plea and his remorse. The offender's moral culpability was high because he resorted to self-help violence. The difference between Fabas and the case at bar is that Mr. Geoghegan was in charge of the kidnapping which resulted in the victim's death.

5. R. v. Araya, 2015 ONCA 854: The offender was sentenced to 6 years for manslaughter arising out of a shooting during a robbery. Another party had shot and killed the victim who had been pursuing the offender and his group. It was determined that the offender was a party to the robbery while knowing that his associates were armed with guns. The offender was 18 years old, with no record, employed, and had shown successful efforts at rehabilitation while incarcerated.

6. R. v. Peers and Harding, 2006 BCSC 1971: The offenders broke into the victim's residence to steal his marihuana. Harding went inside and killed the victim by a prolonged assault. Peers remained outside and entered only after the assault was complete. Peers was on parole and had a "horrendous" criminal record even though he was only 24 years old. The trial judge noted that he was not directly involved in the beating and imposed a sentence of 5 years. The difference between Peers and Mr. Geoghegan is that Peers did not anticipate that the victim would be confined and the victim was not a particularly vulnerable person. The trial judge also determined that, although there was some planning, it was rudimentary at best. In the case of Mr. Geoghegan, there was a plan to take Mr. Smyth and force him to rob a jewellery store. In addition, Mr. Geoghegan was aware that Mr. Smyth was restrained by zap-straps and being beaten.

6. R. v. Stuiver, 2020 BCSC 334: Stuiver and McPake planned to rob a drug shop. McPake entered the shop first and shot an employee to death. Stuiver was carrying a can of mace. Stuiver pled guilty to manslaughter as a party. He was 21 years old with a difficult upbringing and a criminal record. The trial judge noted that Stuiver was a party to the offence and did not fire the gun. He was sentenced to 7 years in jail. Stuiver had argued that a fit sentence was 6 years, whereas the Crown had countered with the 7-year submission.

7. R. v. Martinez, 2015 BCSC 653: The offender pled guilty to manslaughter arising out of a plan to rob a drug dealer at his home. Martinez and his two associates all carried guns and, upon entering the residence, shots were fired that killed the dealer. Martinez did not fire the fatal shots. He was sentenced to 7 years. Martinez was 20 years old, with an unstable upbringing. He had no criminal record and good opportunities for rehabilitation. [65] It is apparent from reviewing all of the case authorities that there are distinct features in each case that support the sentence imposed. [66] In some cases, the lack of a criminal record, the youthfulness of the offender, the unstable upbringing, Indigenous heritage, or positive prospects of rehabilitation or any combination thereof can result in a lower sentence. [67] In contrast, the existence of a criminal record, participation in planning, and knowledge of the potential for violence can result in a higher sentence. It simply underscores the need for this Court to impose a sentence in accordance with the principles of sentencing within the context of the particular circumstances of these offences and this offender. [68] In these circumstances, the Crown's upper range of 12 years is too high and the defence submission that 6 years is appropriate fails to recognize the gravity of these offences. [69] In these circumstances, the

sentencing objectives of denunciation, deterrence, and protection of the public must be paramount. However, rehabilitation is always a factor to consider, although it receives less weight than the sentencing objectives as identified. [70] What cannot be lost in the assessment of a fit sentence is that a young, unarmed man was killed in the context of self-help violence arising from the drug culture. Mr. Smyth has left behind a grieving family and community. His young children will not be able to enjoy and share with him, their childhood evolving through the years into young adults and beyond. The victim impact statements all speak so eloquently to the immense loss caused by these senseless and brutal events. [71] The comments of Justice Macaulay in R. v. Huth, 2014 BCSC 570, at para. 14 are helpful in understanding the nature of sentencing when a death has occurred: In considering a just and fit sentence, I remind myself that criminal offences resulting in the loss of a life are among the most serious possible. It is for that reason that the maximum penalty is life imprisonment although, in very rare circumstances, the penalty for manslaughter might not include any imprisonment. It follows from all of the above that it would be wrong for anyone to expect that the application of the purpose and principles of sentencing to the circumstances here somehow reflects a translation of

the value of a life lost into some equivalent years of imprisonment for the offender. That is not a goal of sentencing. As another judge stated: "No sentence will ever breathe life into the deceased person, nor restore him or her to his or her family and/or friends" (R. v. Costa, [1996] O.J. No. 299 (Ontario General Division), at para. 42). [72] Mr. Geoghegan has been failed by the lack of parental guidance and the kind of opportunities that most people growing up are afforded. It is the upbringing that often shapes a person's life. Even though I am not persuaded that Mr. Geoghegan has an Aboriginal heritage, nonetheless, his unstable upbringing as described in the Gladue report is a mitigating factor that reduces what otherwise would have been a sentence closer to the ranges urged by the Crown. Mr. Geoghegan has taken some steps to address his substance abuse issues and life skills so as to provide him with the ability to disassociate from the criminal lifestyle that he has become accustomed to. It is not something that can be achieved in short order, but will require extensive assistance, programming, and counselling. Some of the resources he can access are set out in the Gladue report. [73] It is apparent that Mr. Geoghegan had a limited role in Mr. Smyth's death. He was not aware that Mr. Commodore intended to kill. [74] While Mr. Geoghegan's personal circumstances provide

mitigating factors, they do not overtake the aggravating facts which are significant. The sentence must reflect society's disassociation from the kind of self-help violence in the drug culture that has become all too prevalent. Thus, the emphasis on denunciation, deterrence, and protection of the public. [75] Mr. Geoghegan was the driving force behind the kidnapping. He was in charge. He was aware that Mr. Smyth was zap-strapped and beaten. He was aware that Mr. Commodore had a gun. [76] In order to ensure that Mr. Geoghegan's sentence is on par with those who have committed similar offences in similar circumstances, I have taken particular guidance from those case authorities that have some similarities. [77] The cases that I have referred to which provide the greatest similarity with respect to these offences and the particular offender are McLeod, Smith, Peynado, and Grattan. [78] I conclude that the appropriate range for a global sentence for these offences would be in the range of 8 to 10 years. After considering the mitigating factors unique to Mr. Geoghegan, a fit and just sentence is 8 years in prison on each offence, to be served concurrently. The actual sentence will take into account credit for presentence custody. [79] There are ancillary orders that I also make: 1. These offences are primary designated offences for the purposes of s. 487.05(1) of the Criminal Code. Mr. Geoghegan shall, therefore, within 30 days provide a sample of his DNA for registration into the national DNA databank.

2. Pursuant to s. 109(3) of the Criminal Code, Mr. Geoghegan shall be prohibited for life from possessing any firearm, crossbow, restricted weapon, ammunition, or explosive substance and, pursuant to s. 109(2)(b), he shall be prohibited for life from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition.

3. Pursuant to s. 743.21 of the Criminal Code, and during his custodial sentence, Mr. Geoghegan is prohibited from contacting Darryl Commodore, DeAnna Grant-Clarkson, Candice Houseman, Amanda Loewen, Melanie Morris, Paul Repkow, Jered Sims, Lorne Sims, Sean Smyth, and Martin Snowden.

4. Pursuant to s. 737(2.1)(a) of the Criminal Code, the victim fine surcharge is waived. [80] Mr. Geoghegan has been in custody since June 26, 2021. He is entitled to presentence credit at one-and-a-half-time for each day he has already served. Can counsel give me those numbers so that we can have those accurately entered into the record? [81] CNSL S. BUCK: Yeah, I think we addressed that in sentencing. My experience is that Corrections will do the calculation. [82] THE COURT: Well, they always come back and say, "There is a difference." I would rather have those - [83] CNSL S. BUCK: All right. [84] THE COURT: - set out. We can take a break. We can stand down and counsel can make those calculations so that it is clear on the record. [85] CNSL S. BUCK: I believe Crown counsel have the number up to the date of sentencing submissions. If we can just have a - [86] CNSL M. RYGUS: 805 days. [87] CNSL S. BUCK: 105 days? [88] CNSL M. RYGUS: 805 days. [89] CNSL S. BUCK: 805 days is what we are - I don't want to put my friend in a bind here. If we could just take a couple of minutes, we could be sure. [90] THE COURT: Sure, why do we not stand down. [91] I am also going to order that the warrant of committal have attached to it the book of materials marked as Exhibit 1 and, also, the certificate that was marked at Exhibit 5. I have not included the victim impact statements to be attached

to the warrant of committal as a result of privacy concerns for those that have provided those statements. All right. [92] THE ACCUSED: Okay, can I say something - [93] THE COURT: Well, no - [94] THE ACCUSED: - quickly, Your Honour? [95] THE COURT: - just - just a second. [96] THE ACCUSED: All right. [97] CNSL S. BUCK: Let me talk to my client in the - [98] THE COURT: We will take a break. [99] CNSL S. BUCK: - five minutes and - [100] THE COURT: Sure, we will take a break. [101] THE CLERK: Order in court. All rise. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [102] THE CLERK: We're back on the record, Mr. Justice. [103] CNSL M. RYGUS: Thank you, Mr. Justice. So we crunched the numbers and confirmed that Mr. Geoghegan has served 800 in days - 804 days of presentence credit with an enhanced calculation of 1,206 days. [104] THE COURT: One-two-oh-six? [105] CNSL M. RYGUS: Yes. [106] THE COURT: And did you calculate out what the eight years would be? [107] CNSL M. RYGUS: Three years, three months, 19 days is what our time and date website has informed us he has served thus far. [108] THE COURT: All right. We should - [109] CNSL M. RYGUS: I have - [110] THE COURT: If we do this in days rather than - [111] CNSL M. RYGUS: Oh, do you mean days left to serve, Mr. Justice? [112] THE COURT: Yes, so that - [113] CNSL M. RYGUS: Oh, sorry, then it is - [114] THE COURT: - we can actually -

we can put in the record the actual sentence. [115] CNSL M. RYGUS: Yes, so according to my math, and we did not check this, but 1,714 days left to serve is what I have determined. [116] CNSL V. ALDOSKY: That accords with my math, 1,714 days, and I did the additional step of turning that into years and months. Mr. Justice, it is four years, eight months, and 10 days. [117] THE COURT: All right. The credit that Mr. Geoghegan shall receive, then, is for 1,206 days that he has served. He still has four years, eight months, and 10 days. That is the actual sentence. "S.D. Dley J." DLEY J.