



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Dunn,









2010 BCCA 22




Date: 20100114

Docket:
CA037610

Between:

Regina

Respondent

And

Joseph
Allan Dunn

Appellant




Before:



The Honourable Mr. Justice Donald





The Honourable Madam Justice Levine





The Honourable Mr. Justice Lowry




On
appeal from: Provincial Court of British Columbia, May 20, 2009,
(
R. v. Dunn
, Vernon Registry 43549-1;43727-1; 43642-1)

Oral Reasons for Judgment




Counsel for the Appellant:



L.J.
  Helps





Counsel for the (Crown) Respondent:



F.
  Tischler





Place and Date of Hearing:



Vancouver,
  British Columbia

January
  14, 2010





Place and Date of Judgment:



Vancouver,
  British Columbia

January
  14, 2010








[1]

DONALD J.A.
: Joseph
Allan Dunn seeks leave to appeal and, if granted, appeals from a restitution
order in the amount of $15,000 imposed as part of a custodial sentence and
probation on pleas of guilty to break and enter of a dwelling house, failing to
stop a vehicle in an attempt to evade a police officer, assault of a police
officer and escape from lawful custody.

[2]

The order in question obliges Mr. Dunn to pay
$15,000 to the victim of the break-in to compensate for the theft of an all
terrain vehicle (ATV), valued at $10,000, and two mountain bicycles valued at
$5,000.

[3]

Mr. Dunn argues that the sentencing judge erred
in making the order on the spur of the moment without having determined whether
the order was fair in light of the other penalties, and whether it
realistically could be fulfilled.

[4]

I agree that the order was made in error and I would
set it aside.

[5]

Counsel below presented a joint submission on
sentence. The judge acceded to the submission and accordingly imposed the
following sentence:

(i)       for the
break and enter  one day in jail, having given six months credit for four
months pre-sentence custody, and two years probation, including a condition
that Mr. Dunn pay the victim $1,060 restitution for an insurance deductible of
$1,000 plus $60 for re-keying the home (this order is not appealed);

(ii)      for
failing to stop  one month consecutive jail and an 18-month driving
prohibition;

(iii)      for
assault of a police officer  two months concurrent jail and a two-year
weapons prohibition; and

(iv)     for escaping lawful custody  three months
consecutive jail.

In the result, Mr. Dunn was sentenced to
four months additional time in custody, in addition to the other penalties.

[6]

The transcript of the sentence proceedings
indicates that the idea of an additional restitution order only occurred to the
judge at the end of submissions. It seems that it was prompted by his
consideration of the victim impact statement and not as a request from the
prosecutor:

THE COURT:  I see, Ms. Jedlinski, that
on the victim impact statement the victim, ..., says that in addition to the
deduction she paid, she lost the quad at $10,000 and another item at $5,000,
which she wasnt reimbursed, so . . .

MS. JEDLINSKI:  Yes, Your Honour, Im
wondering if perhaps there can be a stand-alone restitution order for those
items, the $1,060 be part of the probation and then the $15,000 for the other
items be stand-alone. Just -- I dont know what the likelihood of -- is
recovering -- of recovering that money.

THE COURT:  Well, if he wins the
lottery, I guess so. But as far as $1,060, is that in the probation order
itself?  What do you think about that, Mr. --

MR. DEULING:  Me?

THE COURT:  Yes.

MR. DEULING:  Well, I dont have any
submissions with respect -- I have a bit of a problem with the ATV and the
$15,000. I --

THE COURT:  Well, you can go after all
his cohorts, I guess, to contribute to it if, you know --

MR. DEULING:  Well, it would be my
submission, Your Honour, that it would probably be better for Mr. Dunn to not
have those cohorts anymore in any sense of the word, and I think if hes hoping
to have any meaningful recovery from his addiction that he wouldnt want to be
around those people.

THE COURT: 
Youd think. On the other hand, we have a bunch of people at the other end of
the crime who are out a whole bunch of money, and were not even talking about
compensation for the psychological harm thats been involved and all that other
stuff that happens on break and enters, so . . .

[7]

The circumstances of the offences are not
material to this appeal. It is to be noted, however, that the victim and her
family suffered considerable emotional distress in addition to the loss of
property. The victim expressed the hope that the appellant would reveal where
the ATV and bicycles were. I surmise that the judge tried to provide the victim
some solace by ordering restitution.

[8]

The circumstances of the offender are, in the
words of his counsel at sentencing, those of a homeless crack addict. Nothing
was said about his ability to make restitution within a reasonable time. The
judges remark about winning the lottery provides some measure of the odds that
Mr. Dunn would be able to comply with the order within a meaningful time frame.

[9]

It appears from the record that the judge
attempted to give effect to the victims wish that Mr. Dunn disclose the whereabouts
of the ATV and bicycles. This is an indirect purpose for the order to pay
money, and since Mr. Dunn was not the only person involved in the theft, the
order has, in that respect, doubtful efficacy.

[10]

The reasons for sentence are very brief. They
adopt the joint submission. As to the order in question, the judge simply
pronounced the order, he did not discuss ability to pay or explain how the
order fits in with the other aspects of the sentence. He said only this (20
May, 2009), Vernon No. 43549-1, 43727-1, 43642-1 (B.C.S.C.):

[15]  And with
respect to the 43549 [the information charging the offence], the break and
enter, there will be a 738 order in favour of [the victim] in the amount of
$15,000.

[11]

The relevant principles governing the exercise
of the discretion to order restitution are compendiously reviewed by Madam
Justice Prowse in
R. v. Yates
, 2002 BCCA 583, 169 C.C.C. (3d) 506. Among
those principles are that ability to pay must be examined as an important
factor, as well as the effect such an order has on the balance of the sentence.
Those principles were not observed in the present case.

[12]

I am unable to say that any useful purpose would
be served by a restitution order where the likelihood of compliance is as
remote as the judge said. The order was an afterthought made without the
benefit of full argument and is unlikely to provide any tangible benefit to the
victim.

[13]

I would grant leave, allow the appeal, and set
aside the restitution order under appeal.

[14]

LEVINE J.A.
: I
agree

[15]

LOWRY J.A.
: I
agree.

[16]

DONALD J.A.
:
Leave to appeal is granted. The appeal is allowed and the restitution order is
set aside.

The Honourable Mr. Justice Donald


