



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



R.
                v. Bastarache,









2004 BCCA
            4




Date: 20040105





Docket: CA30228

Between:

Regina

Respondent

And

Francis
      Joseph Bastarache

Appellant












Before:



The Honourable
            Madam Justice Newbury





The Honourable
            Mr. Justice Low





The Honourable
            Mr. Justice Lowry









M.J. Dewitt-Van
            Oosten



Counsel for the Respondent





F.J. Bastarache



Acting In Person





Place and
            Date of Hearing:



Vancouver, British Columbia





1 December 2003





Place and
            Date of Judgment:



Vancouver, British Columbia





5 January 2004









Written
              Reasons by
:





The Honourable
            Mr. Justice Low





Concurred
              in by:





The Honourable
            Madam Justice Newbury
The Honourable Mr. Justice Lowry





Reasons for Judgment of the Honourable Mr. Justice Low:

[1]

After
        hearing oral submissions, we granted leave to appeal sentence but dismissed
      the appeal with these reasons to follow.

[2]

A
        jury convicted the appellant of the following offences: robbery, discharging
        a firearm with intent to wound, maim or disfigure, and aggravated assault.  The
        trial judge applied the rule against multiple convictions and entered a
        judicial stay of proceedings on the second two counts.  He sentenced
      the appellant to imprisonment for six years on the robbery count.

[3]

The
        appellant argues that the sentence was excessive upon comparison with
      the sentences imposed in like cases upon similar offenders.  We determined
        that the sentence was fit and that there was no basis upon which we should
        interfere with it.   The circumstances of the robbery were severe and
      the appellant has a serious criminal record.

[4]

The
        robbery offense occurred in Duncan, B.C. on 14 February 2001, one day
      after the appellant was released from prison on a one-year sentence for
      possession
        of property with a value over $5,000 obtained by crime imposed in Nanaimo
        on 25 June 2000.  The appellant was under the influence of alcohol and
        cocaine.  He attended a nightclub in Duncan with some friends.  One of
        the friends was in an altercation and was chased off the premises after
        being assaulted.  Immediately after that incident, the appellant took a
        taxi to a motel unit rented by his friends.  He retrieved a handgun and
        ammunition.  Before the jury, the appellant testified that he was not previously
        aware that the weapon was in the motel unit.  However, the trial judge
        in the sentencing proceedings, as he was entitled to do, rejected that
      factual assertion.

[5]

The
        appellant returned to the scene of the incident and confronted the individual
        who had assaulted his companion.  He fired the gun over the head of that
        person.  The jury acquitted the appellant of offenses arising out of
      that conduct.

[6]

The
        appellant then got back into the taxi and directed the driver to drive.  The
        driver tried to persuade the appellant to give up the gun but the appellant
        fired the gun, shooting the driver in the ankle.  The appellant again fired
        the gun, this time shooting the victim in the thigh.  The victim drove
        away from the nightclub and the appellant fired the gun toward the nightclub
        from the front passenger seat.  The victim was disabled from driving and
        brought the taxi to a stop.  He got out the driver's side and the appellant
        struck him on the head with the gun.  The appellant drove away in the taxi
        pursued by police vehicles.  The police were unable to apprehend the
      appellant until he had driven all the way to Victoria.

[7]

The
        sentencing judge observed that the victim, Harold Johnson, was left with
        permanent restrictions on his physical movements and was emotionally
        scarred.  He stopped driving taxi and returned to earlier employment
      as a truck driver.

[8]

The
      sentencing judge described the criminal record of the appellant as follows:

The
        offender has a dreadful criminal record dating back to October 1989.  The
        record includes numerous criminal convictions including convictions for
        theft, possession of stolen property, break and enter, assault, and weapons
        offences.  His last conviction was in June of 2000 for which he received
        a sentence of one year for possession of stolen property with a value in
        excess of $5,000.  He had been released but one day when the events took
      place that give rise to this conviction.

[9]

The
        judge took into account the time the appellant had spent in custody on
        this matter prior to sentencing, more than 19 months, and credited him
        with 39 months.  Therefore, the six-year sentence is the equivalent of
        just over nine years.  Because the appellant had made some effort toward
        his rehabilitation, he declined to make an order under s. 743.6 of the
Criminal
        Code of Canada
increasing the appellants parole ineligibility
      period.

[10]

In
        my opinion, the judge was correct in emphasizing the need to imprison
      the appellant to protect society, deterrence of the appellant and denunciation.  He
        properly considered the attempts of the appellant at rehabilitation to
        be of secondary importance to these factors.  He described those attempts
      as follows:

Since
        his incarceration awaiting trial on these matters, the offender has taken
        several courses at Vancouver Lower Island Regional Correctional Centre.  He
        has done this as a volunteer and has fully participated in a life skills
        program five times, a violence prevention program three times, a harm reduction/peer
        education program twice, and once in a substance abuse program.  He currently
        has a grade 10 education, and he has taken steps to upgrade himself in
      that regard.

[11]

Although
        these efforts by the appellant hold out some hope for his rehabilitation
        and are to be encouraged, they fall short of giving rise to confidence
        that it would serve the interests of public safety to release him into
        the community earlier than the date upon which he will be eligible for
        release under the sentence imposed.  I think the sentencing judge properly
        addressed the appellants efforts at rehabilitation by refusing the order
      under s. 743.6.

[12]

The
        appellant made a number of submissions to us about the length of sentence
        he received.  I have already dealt with some of those submissions and
      I will discuss the others.

[13]

The
        appellant argued that the sentencing judge did not take into account
      the family background of the appellant and should have ordered a pre-sentence
        report because of that background.  The appellant was born in 1970 and
        was thirty years old when he committed the robbery.  Defence counsel advised
        the court during the sentence proceedings that in 1974 (when the appellant
        was three or four years old) his father was murdered and three months later
        his mother committed suicide.  It was said that he never received counseling
        for these events.  After the deaths of his parents, the appellant was
        taken from New Brunswick to Nanaimo where he was raised by an aunt and
        uncle
      whom he holds in high regard.

[14]

I
        was not persuaded that this background required further exploration.  Although
        it is conceivable that it might partially explain the appellants response
        to the assault of his friend in the night club, it does not explain his
        violent treatment of the taxi driver who posed no threat to him at all.  Professional
        exploration of the appellants unfortunate background might be useful
        in dealing with his substance abuse problem and his violent propensities
        but
        his background was not a mitigating factor in determination of an appropriate
      sentence.

[15]

The
        appellant contends that his offence was the product of excitement caused
        by the incident in the night club.  He says that the sentencing judge failed
        to distinguish between pre-meditation and momentary intent while under
        the influence of alcohol and cocaine.  There is no merit in this submission.  The
        judge specifically stated that the shooting of Mr. Johnson was not pre-meditated
        but he did describe it as a willful, violent, criminal act.  He was
        aware of all the surrounding circumstances, properly took them into account
        and
      accurately described the nature of the crime.

[16]

The
        appellant says that, because of the acquittals by the jury on the first
        two counts in the indictment, the judge ought to have considered the
      defence of necessity when imposing sentence.  This is a substantive defence to
        the robbery charge and was relevant only to the trial itself, not to the
      sentencing.  It was not a mitigating factor in the sentencing process.

[17]

The
        appellant argues that he was given the maximum sentence within the range
        for cases of this kind.  He compares his sentence to the sentences imposed
        or upheld by this court in other robbery cases he says are similar to the
        present case.  However, many of the cases the appellant referred us to
        concerned more youthful offenders with less serious criminal records or
        did not involve actual violence.  In addition, the upper end of the range
        is not nine years for more serious robberies.  In
R. v. Klapcic
,
      2001 BCCA 487, I said this:

Although
        it can be said that the more serious robberies attract sentences in the
        range of seven to nine years, nine years is not the upper limit.  In
        cases involving physical injury to the victim where the perpetrator is
        not a
        young adult and has a serious criminal record, the sentences exceed nine
      years.

[18]

In
        that case, we upheld a sentence of ten years given to a 34-year old offender
        with a serious criminal record who committed a robbery at an ATM machine
        that included a physical attack on the 65-year old victim.  That offender
      used a handgun replica to effect his purpose.

[19]

The
        sentence here was fit.  The circumstances of this robbery offence were
        severe.  The appellant twice shot his victim causing permanent injury.  He
        did so only because the victim did not immediately comply with his demands.  In
        addition, he struck the victim with the gun.  These were acts of senseless
        violence committed by a man who has four previous assault convictions,
        one of which was for assault causing bodily harm, and who is no stranger
        to offensive weapons.  He has two prior convictions for possession of a
        prohibited weapon plus one for possession of an unregistered restricted
        weapon.  Despite the appellants post-offence efforts at rehabilitation
        and his expressions of remorse, it was necessary to emphasize the factors
      of denunciation and specific deterrence.

[20]

For
      these reasons, we granted leave to appeal sentence but dismissed the appeal.

The Honourable Mr. Justice
      Low

I agree:

The Honourable Madam Justice Newbury

I agree:

The Honourable Mr. Justice
      Lowry




