COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Westlake,

 

2007 BCCA 294

Date: 20070511


Docket: CA034359

Between:

Regina

Respondent

 

And

James Frederick Westlake

Appellant

Before:

The Honourable Chief Justice Finch

The Honourable Madam Justice Ryan

The Honourable Mr. Justice Donald

Oral Reasons for Judgment

     

Appellant appearing In Person (in custody)

J. Duncan

Counsel for the Respondent

Place and Date:

Vancouver, British Columbia

11 May 2007

[1]                DONALD, J.A.: This Court has allowed an appeal from a conviction for driving while disqualified and has substituted an acquittal for that charge which formed part of a series of charges to which the applicant pleaded guilty before the Honourable Judge Lytwyn in Provincial Court on 16 June 2006.  The applicant also appeals from his sentence on the other charges.

[2]                He was charged with three counts of possession of stolen property: a semi-trailer truck and flatbed on 28 October 2004; a tractor unit on 30 May 2005; and on the same date possession of a stolen licence plate.  He was given a 30 day concurrent sentence for the possession of stolen licence plate; 30 days concurrent for the driving while disqualified; both sentences concurrent to three years for the first possession of the stolen truck, which was in turn concurrent to the three year sentence for possession of the second stolen truck.  It will be seen that the setting aside of the guilty plea conviction and conviction for the driving while disqualified has no effect on the three year sentence, which is the target of this sentence appeal.

[3]                The applicant has a bad record going back to 1979.  There was a nine year hiatus in offending which was recognized by this Court in reducing a 20 month sentence of imprisonment to a 14 month conditional sentence order, taking time served into account.  It was felt by the Court then that the sentencing judge did not give adequate recognition to the efforts this man had made to rehabilitate himself and to avoid offending for a significant period of time.

[4]                The reasons which are cited as 2004 BCCA 417 state the following:

[15] It was, in my respectful opinion, an error in principle for the sentencing judge to reject the possibility of a conditional sentencing order without considering all of the criteria set out in R. v. Proulx, including the issue of whether the appellant would endanger the safety of the community if a conditional sentence were imposed.

[16] The material before us shows that the appellant clearly recognizes his need for treatment for his substance abuse problem, and that he is willing to undergo, or to participate in, whatever treatment or counselling may be available to him to address that issue.  The material also shows the appellant is remorseful for his offending conduct.

[17] As mentioned, his last prior conviction was in 1995.  He appears to have substantially rehabilitated himself since that time.  He has held employment during that period, and has also established a long-term domestic relationship with a common-law partner.  He has acted as a father in the care and support of a boy, now 12 years of age, for the last nine years.

[18] In these circumstances, it does not appear to me, provided appropriate conditions are imposed, that the safety of the community would be at risk if the sentence were to be served in the community.  Apart from the events of 3 October 2003, there is no evidence that community safety would be endangered by a conditional sentence, and I believe conditions can be set which would address the risks represented by those events.

[5]                Regrettably, what was hoped to be only a lapse from a program of recovery from addiction and offending turned out to be a return to a previous pattern of criminality.  While under the conditional sentence order and in breach of recognizance the applicant was found in possession of the two stolen trucks.  It would appear from a review of his background that he has a penchant for stealing large rigs.  The sentencing judge here commented on the treatment that he had recently received by the courts.  Her remarks were as follows:

[4] Firstly, I think you probably got a bit of a break, even though the Court of Appeal did not agree, with a sentence of 20 months.  But then you got the break of a lifetime.  You got a CSO from the Court of Appeal, and four months after that you are driving a stolen truck with a load worth it seems almost, between the two of them, $100,000.  And then you are given another break.  You are not kept in custody, but you are for some reason not charged.  When you are arrested in January of 2005 you are not kept in custody.  You are released.  I mean the breaks just keep on going here.

[5] You then decide to enter a guilty plea to that charge in front of me and you are allowed to remain in the community pending sentence.  Clearly the thought was I was going to get a Pre-sentence Report and it was going to come back and tell me nice things about how you have been doing.

[6]                Before the sentencing judge, counsel for the applicant said that his client wanted a two year sentence if the court was minded to impose more than a 12 month period of imprisonment. 

[7]                One of the complaints of the applicant of this sentence is that the three year sentence is too great a leap from a previous sentence for a similar offence.  I respectfully disagree with that submission.  The sentence that he received, which was altered by this Court, was a 20 month sentence and with time served reckoned into the calculation the 20 month sentence was really left undisturbed.  It was the mode of serving the sentence that was altered.  The step-up here was from 20 months to three years, which is not, in my view, inappropriate. 

[8]                In a very articulate and effective submission, the applicant has asked this Court to substitute the penalty which he anticipated upon pleading guilty at a relatively early stage of the proceedings below.  I think it is important to record that counsel did not advance a joint submission below and, in fact, the transcript indicates that Crown counsel expressed concern that these offences reflected a return by the applicant to his previous criminal behaviour and that a substantial sentence, something beyond 12 months, as was anticipated by the applicant, should be given.

[9]                The applicant also takes the point that the sentencing judge was confused about one element in his past record, that is, whether he escaped from custody or was instead guilty of a parole violation.  Crown counsel, before us, concedes that there probably was some confusion in that regard.  However, I am not satisfied that it had any effect on the sentence.

[10]            The applicant submits that the sentencing judge did not take into account the 23 year time span with no convictions involving personal injury violence and that the judge did not give proper recognition to his drug dependency and his commitment to try and deal with that dependency. 

[11]            In the circumstances of the commission of these offences where they are serial in nature and very much part of a prior pattern, I do not think that the sentence can be affected by these considerations.  In his written material the applicant refers to drug dependency as a mitigating circumstance.  I do not regard drug dependency as a mitigating circumstance.  It is part of the problem.  It is one that he will have to address in order to turn his life around.

[12]            I am not persuaded that there is any basis upon which to disturb this sentence.  I would grant leave to appeal and but I would dismiss the appeal.

[13]            FINCH, C.J.B.C.: I agree.  I would just add this, Mr. Westlake.  You are obviously a man of considerable ability.  We understand from the last time your case was here that you completed a number of university courses.  You have vocational skills.  You are qualified as both a mechanic and a truck driver.  You express yourself extremely well, both orally and in writing.  You have a lot going for you and I think you know what you have to do to turn your life around.  I wish you well, but I agree with my colleague that the appeal must be dismissed.

[14]            RYAN, J.A.: I agree with the comments of both of my colleagues.

[15]            FINCH, C.J.B.C.: Leave to appeal is granted.  The appeal against the three year sentence is dismissed.

“The Honourable Mr. Justice Donald”

CORRECTION:  12 June 2007

Para. 5 quotes of paras. [4] and [5] of the sentencing judge’s reasons.  In first the sentence of para. [5] of the reasons the word “from” should be “front”.