IN THE SUPREME COURT OF BRITISH COLUMBIA
| Citation: | R. v. Roshinsky, |
|
| 2015 BCSC 842 |
Date: 20150501
Docket: X077692
Registry: New Westminster
Regina
v.
Brendan Thomas Roshinsky
Restriction on Publication: A publication ban has been imposed pursuant to s. 486.5(1) of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered.
Before: The Honourable Mr. Justice A. Saunders
Oral Reasons for Sentence
| Counsel for the Crown: | J. Lopes |
| Counsel for the Accused: | H. Gawley |
| Place and Dates of Hearing: | New Westminster, B.C. March 18, 20, 2015 |
| Place and Date of Sentence: | New Westminster, B.C. May 1, 2015 |
[1] THE COURT: These reasons for sentence are being delivered orally. A transcript will be prepared and I am reserving my right to make minor editorial corrections to the content.
[3] The offences were committed on November 8, 2012, when Mr. Roshinsky was at the home of the complainant, S. S. and the offender had first come into contact with each other through an internet dating website. Mr. Roshinsky told S. that his name was “Tom” and that he was offering sexual services for cash.
[4] Mr. Roshinsky and S. exchanged numerous text messages over a period of approximately three weeks, with their attempts to arrange a rendezvous purportedly being frustrated several times by Roshinsky's girlfriend. They ultimately agreed to meet on November 8th. Mr. Roshinsky texted S. that he had put his girlfriend on a float plane to Campbell River, that she was not due back until the following day, and that they could now “hook up” and Roshinsky could stay with S. overnight. Mr. Roshinsky specifically asked S. to pick up some mango juice so he could mix S. a drink of vodka mango.
[5] S. picked up Mr. Roshinsky from the King George Skytrain station. This was the first and only time they met. They went back to S.'s residence. After arriving, S. made drinks for the two of them. Roshinsky said that he did not like the drink as prepared and offered to make him a “secret special family drink” with the mango juice S. had purchased at Roshinsky's request. S. accepted, and Roshinsky proceeded to make the drink, without letting S. see how he was doing so.
[6] Unbeknownst to S., Mr. Roshinsky spiked his drink with a significant quantity of the drug Gamma-Hydroxybutyric Acid or GHB. GHB is a central nervous system depressant; in sufficiently high doses it can cause sedation and anaesthesia.
[7] S. consumed the mango drink. Mr. Roshinsky did not tell him it contained GHB. S. said that he did not like the taste and attempted to pour it out, but Roshinsky protested, and topped up the drink with more mango juice. S. drank most of the drink at once. Within minutes he began to suffer a headache, and he soon lost consciousness.
[8] Roshinsky then stole a number of S.'s belongings including electronics, jewellery, items of clothing and a valuable coin collection. He also stole S.'s vehicle, an SUV. Roshinsky text messaged his girlfriend; the girlfriend had not in fact gone to Campbell River but instead had come with Roshinsky from Vancouver to Surrey, and was nearby, at the King George Skytrain station. Roshinsky texted her that he was "On my way."
[9] S. regained consciousness about three hours later. He awoke lying on the floor, next to a pool of his own vomit. It took him some time to appreciate that he had been drugged, and he eventually noticed that his residence had been ransacked and that his property had been stolen.
[10] S.'s vehicle was recovered in the West End of Vancouver the following day. None of the other personal property was ever recovered.
[11] Mr. Roshinsky is now 26 years old. He has an infant daughter who was born just before his arrest. She lives with Mr. Roshinsky's father.
[12] At the time of these offences, Mr. Roshinsky was the subject of a Canada-wide arrest warrant, having fled from a halfway house where he had been required to reside as a term of his parole from prison.
[15] In October 2009, Mr. Roshinsky was found guilty of robbery, forcible confinement and possession of stolen property with a value of over $5,000. This had been in relation to a home invasion type of incident, in which he and an accomplice had broken into a residence he had previously lived in with its occupants, not appreciating that on this occasion the occupants would be there. He kicked in the door of a bathroom where a female occupant was hiding and threatened her with a hammer. They stole a laptop computer, a video game console and some beer. Mr. Roshinsky was sentenced to imprisonment for five years and two months (after crediting him with the equivalent of 14 months of pre-sentence custody), and a ten-year weapons prohibition under s. 109(2). It was this sentence that he was on parole from at the time of the subject offences.
[17] Section 246 of the Criminal Code encompasses the overcoming of resistance to the commission of an offence. Subsection (a) addresses choking, suffocation, and strangulation inflicted upon a person in order to render them insensible, unconscious, or incapable of resistance. Subsection (b) covers the administration of a stupefying or overpowering drug. Either of these forms of conduct constitutes an indictable offence, rendering the guilty party liable to imprisonment for life.
[18] Section 334(a) provides that the penalty for theft of property with a value of over $5,000 is imprisonment for a term not exceeding ten years.
[19] Section 333.1(1) provides that on proceedings by way of Indictment, theft of a motor vehicle is punishable through a term of imprisonment for not more than ten years, with a minimum punishment of a term of six months in the case of a third or subsequent conviction, that latter provision not being germane in the present case.
[20] Section 718 of the Code states that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that meet one or more of several stated objectives, including the denunciation of unlawful conduct, general and specific deterrence, separation of offenders from society where necessary, rehabilitation of offenders, the making of reparation to the victim and to society, and the promotion of a sense of responsibility.
[21] The Code sets out a further fundamental principle that sentences must be proportionate to the gravity of the offence and the offender's degree of responsibility.
[22] Further principles prescribed by the Code that are germane include the recognition of aggravating and mitigating factors, and the need to impose a sentence similar to those imposed upon similar offenders for similar offences in similar circumstances.
[23] Both Crown and defence are agreed that Mr. Roshinsky has been in detention since November 7, 2013, and is entitled to credit on the basis of the statutory maximum of 1.5 to 1. As a result, by my calculation, any sentence should be reduced by 27 months. Apart from that, the positions of the parties diverge.
[24] The Crown submits that the appropriate sentence, before applying credit, is in the range of six to eight years of imprisonment on Count 1, and five years on each of Counts 2 and 3, all to run concurrently.
[25] The defence contends for a sentence of four to five years on Count 1, and two years on each of Counts 2 and 3, all to run concurrently.
[26] The Crown was unable to provide any authorities dealing with sentencing of offenders in cases where a drug had been administered to further a theft. Reference was made to R. v. Field, 2010 YKSC 19, a case in which a hypnotic drug Zopiclone had been administered to further a sexual assault. In sentencing the offender, Mr. Justice Gower agreed with the Crown's submission that general deterrence and denunciation were the paramount sentencing objectives. His Lordship stated, at para. 37:
[37] … That is not particularly surprising given that the maximum punishment for administering a stupefying drug is imprisonment for life. …
[27] Justice Gower also made reference to the unreported decision of Madam Justice Fisher of this Court in R. v. Saadatmandi and Tayyebi, dated May 28, 2008, (Docket No. X068912-2) in which Her Ladyship, at para. 67, commented on the pernicious nature of this offence. She said:
[67] … The use of date-rape drugs is very serious. To surreptitiously add a potentially dangerous drug such as GHB to anyone's drink is a serious violation of a person's autonomy… .
[28] The Crown submitted that Gower J. in that decision noted that the sentencing range for administering a stupefying drug to facilitate sexual assaults is three to seven years. That proposition as derived from the comments of Mr. Justice Braidwood in R. v. Dycko, 1997 CanLII 12506 (B.C.C.A.). However, I believe it is clear from the whole of Justice Braidwood's reasons that he was there referring to the sentencing range for the offence of sexual assault. Justice Braidwood said:
… The authorities provided to me on s. 246(b) were not particularly helpful. None dealt with the administering of stupefying or overpowering drugs. It is fair to say that the courts have not established a range of sentence for this offence. …
[29] Justice Braidwood then continued with the caution that not every sentence for sexual assault must fall within the range of three to seven years proposed by the Crown.
[30] The Crown suggested it was appropriate to draw an analogy between cases of drug administration to further a theft, and cases of “home invasions” where there are persons present in the home in which the range is six to 13 years (citing R. v. Anderson, 2014 BCSC 2546). Placing particular emphasis on a number of aggravating factors, including Mr. Roshinsky's criminal history, the evident premeditation and the vulnerability of the particular victim, the Crown submitted that the sentence should be in the low to middle range for home invasions.
[31] Defence counsel sought to distinguish the present case from R. v. Grieve, 1999 BCCA 419, in which the offender had been given two concurrent six-year sentences for administering an overpowering drug with intent to commit unlawful confinement, and for criminal negligence causing bodily harm. The offender in that case had previously been convicted of five counts of common assault involving girls and young women, with the disturbing similarity of those offences also involving the administration of drugs. In contrast, it was submitted that Mr. Roshinsky has no history of administering drugs. While the administration of drugs to further a criminal purpose may be considered an act of violence, it was submitted that it falls at the low end of the range of violent offences.
[32] Defence counsel submitted that the circumstances of these offences are equally consistent with this being a crime of opportunity, rather than necessarily pointing to premeditation. I am asked to conclude that Mr. Roshinsky had met with S. with a genuine intention only of providing sexual services for money, and only changed his mind when he saw S.'s possessions.
[33] I was told by defence counsel that at the time of these offences, Mr. Roshinsky was down on his luck and was as close as could be to being impoverished; he was sleeping on couches in other persons' residences, and he was frequenting websites, offering to perform sexual acts for money. It was submitted that an indication of his level of desperation is that though he is not gay, he was soliciting through websites catering to a gay audience. In addition to his desperate circumstances, counsel also stressed the mitigating factors of the guilty plea, and Mr. Roshinsky's relative youth and the real possibility of rehabilitation.
[34] I begin my discussion of the appropriate sentence with reference to the seriousness of the s. 246(b) offence. There is no disputing that this is a serious and troubling crime. As stated by Mr. Justice Williams in R. v. Beszedes, 2013 BCSC 2500, at para. 82:
[82] … The administration of those drugs is insidious in that it renders an individual helpless and powerless. That person has no control over what occurred; it is a state of absolute vulnerability.
[35] The seriousness of s. 246 offences is indicated by the potential for a lifelong sentence in the most extreme cases. In R. v. Lemmon, 2012 ABCA 103, Mr. Justice Martin stated, at para. 27:
[27] Parliament's recognition of the inherent dangerousness of rendering a person unconscious to facilitate the commission of another offence is reflected by the maximum penalty prescribed for that offence: life imprisonment. Put in context, that is a significantly greater sentence than could have been imposed for the underlying offence in this case, the sexual assault, which carries a maximum penalty of ten years imprisonment. In other words, what is usually seen as the "incidental" offence, carries a much greater penalty than the one it facilitates. The only other related offences of personal violence subject to such a serious penalty are attempted murder and aggravated sexual assault.
[36] There is obviously a range of conduct that falls under s. 246, from choking and strangulation, to rendering a person unconscious in order to interfere with their person – e.g. sexual assault – to rendering them unconscious only to facilitate a property crime. There is also a range of potential harm to victims, from death, to brain damage or serious disability, to being temporarily incapacitated. There is no evidence before me as to the potential damage GHB might do if administered in higher dosages than were used in this case. I have no reason to conclude that an amount of GHB that could be dissolved in a drink would have any serious long-term effects. The subject offence, I believe, falls at the lower end in terms of its severity.
[37] Having said that, there is an undeniable need to structure a sentence for this offender and for these offences that particularly addresses the needs for denunciation and both general and specific deterrence. The need to protect the public and the desirability of fostering Mr. Roshinsky's rehabilitation, are also important goals.
[38] I do not find the Crown's analogy to home invasion cases helpful. While the administering a stupefying drug falls within the definition of violence, the cases to which the Crown made reference involve, in addition to the physical or psychological threats or the apprehension of threats to occupants, the use of violent physical force to gain entry to a residence. The offences are not sufficiently similar for the home invasion cases to serve as a useful guide.
[39] With regard to the aggravating factors in this case, I attach considerable weight to Mr. Roshinsky's criminal history, and in particular his having undergone a significant period of incarceration, only to return quickly to supporting his drug addiction through crime. That the severity of the crime has escalated in the present case in relation to his past offences is not without significance.
[40] I reject completely the assertion of the defence that this may plausibly be regarded as nothing more than a crime of opportunity. No explanation was offered for Mr. Roshinsky having had on his person a quantity of GHB, nor for the quantity being sufficient to incapacitate the person ingesting it. I also note the obvious discrepancy between the story Mr. Roshinsky told us about his girlfriend being out of town, and the truth of her in fact being near to S.'s residence. This was undoubtedly a premeditated act.
[41] I am greatly disturbed by the predatory aspect of Mr. Roshinsky's conduct, that being his having sought out his victim through a hook-up website. It stands to reason that users of such sites will often desire anonymity and may well not report a crime out of fear of embarrassment in revealing the details of their private sexual lives.
[42] In respect of the mitigating factors, I am mindful of the entry of a guilty plea, of Mr. Roshinsky's relative youth and his expression of remorse. I give no weight to counsel's submissions as to the dire nature of Mr. Roshinsky's financial circumstances, as they appear directly to have come about as a consequence of his decision to breach the terms of his parole, leave his halfway house and remove himself from the structure of his parole supervision. I am mindful of the role played by his drug addiction in his behaviour but that does not serve as an excuse for his conduct.
[43] In Lemmon, the Alberta Court of Appeal considered the impact of the inherently dangerous nature of s. 246 offences on sentencing. The Court stated:
[29] In short, although this crime is typically employed as a means to achieve another, it is often the more serious and life-threatening. Accordingly, it would be wrong to treat the offence of choking, suffocation or strangulation, where the victim has been rendered unconscious, as merely a particular or detail of the underlying offence. To do so would fail to hold the offender responsible for what is often the more serious offence, and in the process marginalize extremely dangerous conduct. I do not mean to suggest that every act of applied force to a victim's throat will warrant a significant additional sentence. However, such a sentence is appropriate when the victim is rendered unconscious or suffers bodily harm.
[30] That may be achieved by imposing either a consecutive sentence, a concurrent sentence that is greater than that imposed for the underlying offence, or a sentence for the underlying offence that has been significantly increased because it was accompanied by the choking. To illustrate, if the circumstances of the sexual assault would ordinarily call for a sentence of three years imprisonment, but was aggravated by the victim being choked to unconsciousness, a three-year sentence would no longer be sufficiently responsive. The appropriate sentence could be achieved by the sentencing judge imposing a two-year consecutive sentence for the choking, or a five-year sentence concurrent to the sexual assault. Alternatively, the sentencing objective could be met by the judge explaining in his or her reasons that the sentence imposed for the sexual assault has been increased to five years to fairly reflect the choking, a most serious aggravating factor. Where this option is employed, the sentence imposed for the choking offence may be made concurrent.
[44] Although that Court was dealing with an offence of choking, under s. 246(a), the same logic applies in my respectful view to offences under s. 246(b), particularly where a loss of consciousness has resulted.
[45] This approach to sentencing s. 246 cases appears not to have yet been considered by the B.C. Court of Appeal. Earlier appellate cases such as Grieve and Dycko to which I have previously made reference approved of sentences in which the offences were treated separately and concurrent. However, in Beszedes, Williams J. found the analysis in Lemmon to be persuasive and applied it through pronouncing sentences for a series of s. 246(b) offences that were each to run consecutive to the sentence for the corresponding predicate offence. (The reasons for judgment in that case refer to s. 245, however, I take that to be a typographical error as the fact patterns are described as involving the administration of drugs for the purpose of enabling the commission of crimes as opposed to the simple administration of noxious substances).
[46] Beszedes is a case which involved, in part, the administration of a drug to further property crime. That decision concerned an offender who had pleaded guilty to 15 counts involving ten different victims and events. In some of those events, the offender had administered an unknown powder drug to facilitate sexual assaults. In three other incidents – in particular, those addressed under Counts 9 and 10, Counts 19 and 20, and Counts 23 and 24 – the drug was administered to facilitate robbery. For each of those incidents, the offender was sentenced to two consecutive terms of three years each.
[47] I, too, am persuaded that the approach in Lemmon is appropriate in the present case. The predicate offences we are dealing with are theft over $5,000, and theft of a motor vehicle. Having considered a number of decisions of the B.C. Court of Appeal dealing with such offences – R. v. Bouchard (1998), 117 B.C.A.C. 155; R. v. Tanasescu, 2011 BCCA 47; R. v. Fuller, 2007 BCCA 353; and R. v. Lawson, 2012 BCCA 508 – I have reached the conclusion that, apart from the administration of the GHB, and having regard to the circumstances of the offences and the offender, as well as the harm caused, a fit global sentence for the two theft offences would be a term of imprisonment in the range of two to four years.
[48] In line with Lemmon, I consider the administration of the GHB to be a very serious aggravating factor, significantly elevating the sentence beyond that range. Accordingly, prior to giving Mr. Roshinsky credit for time served, I would find the fit sentence on each of Counts 2 and 3, to be a term of imprisonment of six years, to be served concurrently with each other. On Count 1, the term of imprisonment will be three years to be served concurrently. The term of imprisonment is then to be reduced by 27 months to give Mr. Roshinsky for time served.
[49] Mr. Roshinsky, would you please stand.
[50] Sir, I sentence you a term of imprisonment of three years and nine months.
[51] You are, pursuant to s. 109(3), to be under a lifetime prohibition against the possession of firearms and the weapons described in that section.
[52] You are, pursuant to s. 743.21, prohibited from contacting the complainant directly or indirectly during the three year and nine month custodial period.
[53] You will provide samples of bodily substances for forensic DNA analysis, pursuant to s. 487.051.
[54] Lastly, a copy of these reasons will be forwarded to the Corrections Service pursuant to s. 743.2. You may be seated.
[55] That concludes my judgment. Are there any further matters, counsel?
[56] MR. GAWLEY: No, My Lord.
[57] MS. LOPES: No, My Lord.
[58] THE COURT: Good. Thank you very much. Good luck to you sir.
“A. Saunders J.”
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