R. v. Robinson

2012 BCSC 1134 R. v. Robinson

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Robinson, 2012 BCSC 1134 Date: 20120727 Docket: X075006 Registry: New Westminster Regina v. Benjamin Montgomery Robinson Before: The Honourable Madam Justice Dillon Reasons for Sentence Counsel for the Crown: K.S. Pechet Counsel for the Accused: E.D. Crossin Q.C. Place and Date of Trial/Hearing: New Westminster, B.C. July 20, 2012 Place and Date of Sentence: New Westminster, B.C. July 27, 2012 Introduction [1] On March 23, 2012, Benjamin Montgomery Robinson (Robinson) was found guilty after trial of wilfully attempting to obstruct justice contrary to s. 139(2) of the Criminal Code. [2] The full description of the circumstances of the offence is in the reasons for judgment (2012 BCSC 430) and is summarized here. At the time of the offence on October 25, 2008, Robinson was an off-duty police officer with the RCMP. He was involved in a motor vehicle accident after consuming alcohol at a children's party. He left the scene of the accident and purposefully consumed alcohol at his house before returning to the scene of the accident. Robinson then informed the attending police officer that he had consumed "two shots of vodka" at his house before returning to the scene. When the officer suggested to Robinson that he had consumed more alcohol than that, he responded untruthfully with the statement that he had consumed "a couple

beers" at 5:30 p.m. In fact, Robinson had consumed five beers up until about 9:40 p.m. and was concerned that he was impaired. [3] Robinson knew that the statement about how much alcohol he had to drink would put the investigation of his level of impairment off track. As an experienced police officer specifically trained in the area of impaired driving, Robinson also knew that the statement that he had two shots of vodka without stating a specific amount would disable police from extrapolating backwards to determine his level of impairment when driving. The act of drinking the vodka at home and then his deliberate statements to investigating officers were intended to fit classically into the defence criteria for impaired driving that he had learned in a comprehensive impaired driving course. [4] The situation was exacerbated by the reality that the motorcyclist, Orion Hutchinson, who had been involved in the accident, laid dead at the side of the road. Robinson had not offered assistance but had fled to his nearby house with his two children who had been in his car, leaving his driver's licence with a bystander. This conduct exacerbated the trauma and grief experienced by the deceased's family who provided impact statements to the Court. Their comments are relevant to the nature and scope of harm done to the community because they reflect the feelings and reactions of society

that cause one to lose faith in the 'protect and serve' motto of our police. Positions of the Crown and the Defence [5] The Crown seeks a sentence of imprisonment for three to nine months or a conditional sentence of 12 to 18 months. The aggravating factors are that Robinson was in a position of public trust as an off-duty police officer and acted for his own benefit in successfully obstructing the investigation into his level of impairment. He used his knowledge learned in police training to subvert the ends of justice. He failed in his fundamental duty to render assistance at an accident. His conduct discredited the RCMP. The Crown says that the criteria for a conditional sentence are met except that a conditional sentence would not be consistent with the fundamental principles and purpose of sentencing which must give priority to denunciation and deterrence here. [6] The defence seeks a conditional sentence of between three and six months. The restorative aspect of sentencing is stressed with Robinson's need for continuation of his voluntary treatment programme for alcohol dependency and his desire to reintegrate into the community. Robinson has been the subject of intense media scrutiny and community censure in the almost four years since the offence occurred. In explanation for leaving the scene without giving assistance, Robinson points out that he asked whether the

injured motorcyclist was OK and heard a bystander call 911. Imprisonment is to be considered a last resort, especially when protective custody could be expected and Robinson is an aboriginal offender. Denunciation can be met with a conditional sentence. Background of the Offender [7] Robinson is a 42-year old first offender. He is divorced with three children. He is a member of the Osoyoos native band, but was raised in Tsawwassen, British Columbia. He obtained a university degree in aviation and economics in 1994 and became a police officer with the RCMP in 1996. He was initially posted to Chase where he was involved in the first of several critical incidents in his career, this involving a non-fatal shooting. He was subsequently involved in the Sun Peaks blockade in 2001 and the Dziekanski tasering incident at the Vancouver International Airport in October 2007. Since this offence, Robinson was suspended from duty, eventually leaving the RCMP voluntarily on the date of this sentence hearing. [8] Robinson has been under the care of a registered clinical psychologist since October 28, 2008. Dr. Nemetz reported that Robinson suffers from post-traumatic stress disorder as a result of the critical incidents. However, he was severely emotionally withdrawn such that substantive therapy had not been possible until recently when Robinson addressed his alcohol problem. Robinson has

been a voluntary inpatient being treated for alcohol addiction at a specialized clinic since March 30, 2012. He has adhered to the programme and was transferred to extended care in May 2012. He is expected to complete the extended treatment on August 23, 2012. Dr. Nemetz noted substantial improvement since Robinson has abstained from alcohol. [9] Robinson's treating psychologist described his maladaptive handling of critical incidents as a factor of alcohol dependency. While Dr. Nemetz explained that post-traumatic stress disorder and alcohol abuse do not absolve Robinson of responsibility for the offence, they would have interfered with his normal decision making processes. She recommended that he abstain from alcohol use and maintain substantive therapy for his disorder. She considered the probability of recidivism to be extremely low and said that Robinson does not present a danger to society. [10] It is not clear what Robinson has been doing with his time since he was suspended from his employment as a police officer four years ago. However, from accounts of counsel, the media attention given to Robinson as a result of this matter and the airport tasering has been crippling. Because of the shame and vitriol, Robinson has been in a state of paralysis. [11] Robinson has expressed no remorse or acknowledgment of guilt. He did, however, express sympathy to the family of the

deceased motorcyclist. [12] Robinson sought no letters of support from the community. There are, however, two letters from his police colleagues at the Richmond RCMP detachment who reinforce Robinson's performance assessment as "stellar" and "an asset to the organization". Robinson's employment history is only candidly before me. It is of concern to me that neither of the two Richmond police officers who wrote on behalf of Robinson referred to the nature of the crime that he committed or its effect upon the reputation of the RCMP. They acknowledge no deficiency in Robinson. In contrast, the staff relations officer of the RCMP, who assisted Robinson in the aftermath of the airport tasering, acknowledged the findings of the Court and expressed that Robinson has demonstrated himself to be a caring supervisor and father in the face of great stress and difficulty. The Appropriate Sentence (a) General Principles [13] The offence of obstruction of justice carries with it a maximum sentence of ten years imprisonment with no minimum sentence directed. It is a serious offence that strikes at the heart of the justice system. This is especially so in the context of an off-duty police officer misleading other police officers in the execution of their investigative duties. Such a crime seriously undermines public confidence in the police. [14] Because police officers occupy a special

position of trust in the community, their sentence when they commit crimes will be more severe than that of an ordinary person (R. v. Cusack (1978), 26 N.S.R. (2d) at para. 14, 41 C.C.C. (2d) 289 (C.A.) [Cusack]; R. v. Nixon (1991), 63 C.C.C. (3d) 428 (B.C.C.A.); R. v. Koopman, 1999 ABCA 269, 244 A.R. 109 [Koopman]; R. v. Tsui, 2008 BCPC 155 at paras. 37-38 [Tsui]). It matters not whether he was on or off duty (Cusask; Koopman at para. 25; Tsui at paras. 38 and 55). [15] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Criminal Code). While the fundamental principles and purposes of sentencing are enunciated in s. 718 and s. 718.2 of the Criminal Code and regard must be had to all of them, general deterrence and denunciation overshadow all other principles when it comes to shaping a fit sentence for a police officer (Cusack at paras. 13 and 14; R. v. LeBlanc, 2003 NBCA 75 at para. 25, 264 N.B.R. (2d) 341 [LeBlanc]; R. v. Cook, 2010 ONSC 5016 at para. 38 [Cook]; R. v. Greenhalgh, 2011 BCSC 511 at para. 53 [Greenhalgh]). Denunciation is intended to communicate society's condemnation of the particular offender's conduct as encroaching upon society's basic values (LeBlanc at para. 29). [16] The shame and disgrace suffered especially by public officials in the conviction and sentencing process should not be

over-emphasized in determination of a fit punishment (Cook at para. 37; Greenhalgh at para. 53). The likely inevitable loss of employment falls to be considered within the totality of the circumstances but does not "trump the pressing need for denunciation and deterrence" (Cook at para. 42; Greenhalgh at para. 53). [17] It should not be overlooked that police officers who are imprisoned will likely spend their time in protective custody. This is considered to be a mitigating factor (Cook at para. 43). Imprisonment should be a last resort, especially in the case of aboriginal offenders, and all other reasonable, less restrictive sanctions should be considered (ss. 718.2(d)-(e) Criminal Code). Restorative goals play a major role in the sentencing of aboriginal offenders (R. v. Ipeelee, 2012 SCC 13). [18] A conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at para. 21 [Proulx]). Denunciation can be achieved through extending the duration of sentence and imposition of strict conditions (Proulx at paras. 102-103; R. v. Bodnarchuk, 2008 BCCA 39 at para 12, 254 B.C.A.C. 6). A conditional sentence may be more restorative when rehabilitation for alcoholism is underway (Proulx at para. 109). [19] In R. v. Dosanjh, 2006 BCPC 574 [Dosanjh], a senior police officer was convicted of

attempting to obstruct justice after he counselled his cousin to lie to the police about the origin of funds seized from the cousin's residence. The officer had no direct contact with law enforcement authorities. The officer had an exemplary reputation and was supported with many reference letters from police colleagues, family members, and members of the community. He was shown to be an active volunteer. There was no need for specific deterrence or rehabilitation. He had been suspended without pay pending trial and eventually lost his job. He was sentenced to a conditional sentence of three months to be served in the community under specific conditions. (b) Application [20] As the Crown carefully pointed out, Robinson is not being held accountable here for his manner of driving or for causing the accident that took a life. Rather, he is being sentenced for his conduct that obstructed police investigation into his blood alcohol content. [21] Robinson's crime is at a significantly serious level as he left the scene of an accident and, knowing the extent of his jeopardy, acted to mislead police investigation into his conduct. While the sudden and serious nature of the accident while Robinson's children were in the car might explain Robinson's reaction to some extent and lower his moral culpability, his conduct was nonetheless deliberate and calculated. He used his knowledge

learned as a police officer to mislead investigators: he made a choice. He was well aware of the consequences of his conduct. He disregarded his duty to assist. His conduct discredited the police at a time when police conduct generally was under intense public scrutiny. He has diminished the reputation of the RCMP and his fellow officers. [22] Robinson's position as a police officer is a statutorily recognized aggravating circumstance (s. 718.2(a)(iii) Criminal Code). [23] While not an aggravating feature, the offender is not entitled to any leniency associated with remorse or acknowledgment of guilt. [24] In explanation for his conduct, Robinson has shown that he was an undiagnosed alcoholic suffering from post-traumatic stress disorder. He had been intransigent in dealing with his long standing alcohol abuse problem. It is acknowledged that Robinson's family has suffered from alcoholism which may be considered to be systemic within the aboriginal population. The fact that he is now accepting and seeking treatment for these conditions is a mitigating factor in sentence. The continuation of his treatment goals is important for his rehabilitation personally and societally. [25] The fact that Robinson has lost his employment as a police officer and the media scrutiny that he has been under cannot be wholly attributed to this offence. In any event, his career and personal life is

only one factor to consider in keeping with the public need to respect the system of justice and the primary principles of sentence applicable here. [26] In mitigation, it should be remembered that Robinson is a first time offender. His crime was relatively spontaneous and was said by his psychologist to be an impulsive fear reaction to a very serious collision. He has already suffered significant consequences as a result of this offence. [27] The circumstances here are more aggravated than in Dosanjh. Robinson interacted directly with police authorities in an effort to mislead the investigation. His reputation had been besmirched before these matters began. He has only recently been financially deprived from employment. Rehabilitation is an urgent issue. Robinson does not enjoy wide community or family support. [28] Nonetheless, Robinson does meet the criteria for a conditional sentence. The conditions of a community sentence may be strict enough to satisfy the goal of denunciation and deterrence given all of the circumstances here. [29] After consideration of all of these circumstances and the application of the legal principles of sentencing, I have concluded that a conditional sentence of 12 months is appropriate. The conditions of sentence are: 1. Keep the peace and be of good behaviour; 2. Appear before the court when required to do so by the court; 3. Report to a

supervisor within two working days after the making of this order and thereafter when required by the conditional sentence supervisor in the manner required by the conditional sentence supervisor; 4. Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the conditional sentence supervisor; 5. Notify the court or the conditional sentence supervisor in advance of any change of name or address and promptly notify the court or the conditional sentence supervisor of any change of employment or occupation; 6. You shall reside at a residence approved by the conditional sentence supervisor and not change that residence without prior written authorization of the conditional sentence supervisor; 7. You shall remain within your residence 24 hours per day until August 31, 2012, unless being outside your residence is reasonably necessary for the purpose of visiting a doctor, hospital, or other medical service; attending a place of religious observance; attending court; attending a previously scheduled appointment with legal counsel; attending the conditional sentence supervisor's office; attending counselling or treatment as directed by the conditional sentence supervisor; travelling to or from the aforementioned services; or for a purpose approved in advance and in writing by the conditional sentence supervisor.

When outside your residence, you shall comply with any conditions or restrictions that may reasonably be imposed from time to time by the conditional sentence supervisor, including limits on the amount of time that you may be away from the residence; 8. Upon reasonable demand of a peace officer or your conditional sentence supervisor, you shall present yourself at the door of your residence to allow the peace officer or conditional sentence supervisor the opportunity to monitor whether you are in compliance with any house arrest and/or curfew terms of this conditional sentence order; 9. Upon completion of the house arrest term of this conditional sentence order (as set out in condition 7), you shall observe and obey a daily curfew of 9:00 p.m. to 6:00 a.m. and be in your residence at that time, unless you have the prior written authorization of your conditional sentence supervisor to be outside of your residence during these hours. If you are given authorization to be outside of your residence during curfew hours, you shall comply with any restrictions or conditions that may reasonably be imposed by the conditional sentence supervisor, including limits on the amount of time that you may be away from the residence; 10. You shall take and complete to the satisfaction of the conditional sentence supervisor the residential treatment programme that you are presently under at

Edgewood and thereafter any residential treatment programme, counselling and/or assessment that may be directed by the conditional sentence supervisor, including psychiatric/psychological counselling; 11. You shall provide the conditional sentence supervisor with contact information for any physician, psychiatrist or psychologist involved in the treatment or counselling pursuant to the order. Further, you shall provide any such treating or counselling physician, psychiatrist or psychologist with contact information for the conditional sentence supervisor, a copy of this conditional sentence order, and a document authorizing the physician, psychiatrist or psychologist to disclose to the conditional sentence supervisor sufficient information to determine your compliance with the treatment programme; 12. You must follow all the rules and regulations of the residential treatment programme as directed by the conditional sentence supervisor; 13. You shall not consume alcohol or any substance listed in Schedules I-IV of the Controlled Drugs and Substances Act, unless by prescription of a physician; 14. You are to write a letter of explanation and sympathy to the family of Orion Hutchinson before the completion of this conditional sentence, to be delivered through the conditional sentence supervisor, regardless of whether the family will accept it; 15. You shall make a financial

contribution to the victim surcharge fund of $1,000 in recognition of what you have done as an affront to the justice system, such payment constituting a benefit for victims who rely upon the justice system for their protection; 16. You shall carry a copy of this conditional sentence order on your person at all times when you are outside of your residence and upon the reasonable demand of a peace officer or your conditional sentence supervisor, you shall produce a copy of the conditional sentence order for inspection; 17. You shall advise all current or prospective employers of your criminal record and the existence of this conditional sentence order. "Dillon J." ________ The Honourable Madam Justice Dillon