



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Moore,







2006 
          BCCA 44



Date: 20060124





Docket: CA33398

Between:

Regina

Respondent

And

Sherman 
    John Moore

Appellant












Before:


The 
          Honourable Madam Justice Newbury




The 
          Honourable Madam Justice Huddart




The 
          Honourable Mr. Justice Low



Oral Reasons for Judgment




J. 
          Phillips




Counsel for the Appellant




K. 
          Madsen


Counsel for the (Crown) Respondent




Place 
          and Date:


Victoria, British Columbia




24 January 2006





[1]

NEWBURY, J.A.:
Mr. Moore seeks leave to appeal his sentences 
    on a total of nine counts to which he pleaded guilty, ranging from mischief 
    to break and enter.  They took place at various places in the Province over 
    the period between March 2004 and May 2005.  The final offence took place 
    near Penticton when Mr. Moore, driving a stolen car, stole $100 worth of gas 
    and then sped off, went through a traffic signal or sign, and caused a very 
    serious motor vehicle accident, destroying the car he was driving and the 
    second car as well.  Mr. Moore then took off on foot from the scene.

[2]

The following sentences were imposed:

1.         
    Taking a motor vehicle without the owner's consent:  30 days imprisonment.

2.         
    Mischief (2 counts) and theft (at Chilliwack):  each 90 days consecutive to 
    the sentence on the first sentence for the taking of a motor vehicle.

3.         
    Breaking and entering (at Golden):  9 months consecutive to the other sentences.

4.         
    Possession of housebreaking tools:  6 months consecutive.

5.         
    The charges arising from the Penticton incidents, including possession of 
    stolen property over $5,000, theft under $5,000 and failing to stop at an 
    accident:  12 months.

(I note for the record that the warrant of committal 
    erroneously states a 12-month sentence for the possession of housebreaking 
    tools and should say six months on count 131144-2-CT.)  The sentences add 
    up to 31 months all together.  Since the appellant served four months in custody 
    before the sentencing, Ms. Phillips equates it to 39 months, using the double-credit 
    guideline.

[3]

The appellant was age 32 at the time of sentencing and has an adult 
    record, dating back to 1991, of some 21 offences, the longest previous sentence 
    having been two years.  He is yet to be tried in Alberta on charges stemming 
    from his apparent involvement in the theft of a truck and the driving of the 
    vehicle through a stop sign where it collided with another truck, killing 
    Mr. Moore's passenger and seriously injuring the other driver.  Evidently, 
    Mr. Moore was seriously injured and suffered brain damage, which is an important 
    factor in his lawyer's submission on this appeal.  The sentencing judge was 
    told of this incident and of the opinion of the treating doctors that Mr. 
    Moore requires ongoing treatment for the brain injury.

[4]

The sentencing judge was not terribly impressed with this submission 
    that Mr. Moore needed the opportunity to have such treatment and "get 
    back to normal".  At para. 4 of his Reasons, he stated:

[4]  
    Notwithstanding the possibility of a treatment program for which he is on 
    the waiting list, defence counsel refers to giving him an opportunity to get 
    back to normal.  It is clear to me that "getting back to normal" 
    means absolutely no change in his behaviour in the community.  His pattern 
    has been consistent, as I have said, throughout his adult life, one offence 
    after another notwithstanding whether he is on probation, parole or completely 
    free of restrictions.  A penitentiary term is required to reflect the principles 
    that I have referred to and to adequately protect the public, and this is 
    true notwithstanding the fact that he has spent four months in custody.

The Court also found that a conditional sentence order 
    would not be appropriate, noting that Mr. Moore's record showed him incapable 
    of complying with "community-based supervision", and that since 
    he reverts to crime when he is under stress (such as his addiction to drugs), 
    the public requires greater protection than a CSO would provide.  Then followed 
    the pronouncement of the sentences I have listed, together with a four-year 
    driving prohibition and a one-year probation order.

[5]

On appeal, Ms. Phillips submitted that the learned trial judge erred 
    in failing to take the pre-trial custody time into account; by failing to 
    give adequate weight to Mr. Moore's need for rehabilitation, in particular 
    his need for the brain injury treatment (which would apparently consist of 
    a program of counselling); and failing to take into account the principle 
    of totality.

[6]

I am not persuaded the trial judge erred on any of these bases.  He 
    did refer, albeit in passing, to the fact of the pre-trial custody, noting 
    that a penitentiary term was needed to protect the public nevertheless.  It 
    was not necessary for him to expressly state that he was giving the double 
    credit and he may be taken to be aware of the usual rule.

[7]

The more important ground was Mr. Moore's need for treatment.  This 
    might have been more of a concern had his conduct suddenly changed for the 
    worse after the Alberta accident, but that is not the case.  Mr. Moore appears 
    to have very long-standing problems with impulse control, anger management 
    and substance abuse.  Whether his doctors are aware of his past record I do 
    not know, but in my view the trial judge's emphasis on public protection was 
    entirely justified.  Nor were we given any evidence that the counselling he 
    would receive in the federal corrections system would be harmful to his recovery 
    from the brain injury or counterproductive to any treatment he might receive.

[8]

As far as the totality principle is concerned, I do not agree that 
    the aggregate sentence here is a "crushing" one not in keeping with 
    Mr. Moore's record and prospects.  This appellant has a serious record and 
    has committed several offences endangering the public.  The cumulative sentence 
    has not been shown to be unfit in my view.  Those offences that
were
connected were sentenced as a piece; the others were not, and rightly so.  
    To reduce the total sentence below what it would have been had the unrelated 
    sentences been tried separately would be to reward the appellant for re-offending.  
    This we should not do.

[9]

Counsel are agreed the trial judge did err in imposing a probation 
    order, given s. 731 of the
Criminal Code
and s. 139(1) of the
Corrections and Conditional Release Act
, see
R. v. Pawlak
, 
    [2005] BCJ. No. 2251.  As well, assuming the four-year driving prohibition 
    was imposed under the
Code
, the duration of the prohibition 
    must be reduced to three years in accordance with s. 259(2)(c).  To that extent, 
    and that extent only, I would grant leave and allow the appeal.  As for the 
    balance of the appeal, I would dismiss it.

[10]

HUDDART, J.A.
:  I agree.

[11]

LOW, J.A.
:  I agree.

The 
    Honourable Madam Justice Newbury





Correction:
03 February 2006



In reasons for judgment dated January 24, 
    2006
, the following changes 
    should be noted:



The list of Counsel has been corrected and 
    should read as follows:




J. 
          Phillips


Counsel for the Appellants




K. 
          Madsen




Counsel for the (Crown) Respondent




































