IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	R. v. Noble,
	2008 BCSC 216

Date: 20080204

Docket: 26508-2

Registry: Fort St. John

Regina

v.

Keith Francis William Noble

Before: The Honourable Mr. Justice Parrett

Oral Reasons for Sentence

February 4, 2008

Counsel for Crown:	M. Fulmer
Appearing on his own behalf:	K.F.W. Noble
Place of Trial/Hearing:	Prince George, B.C.

[1]                THE COURT:  The accused has been convicted of a single count under s. 319(2) of the Criminal Code.  That count carries a maximum penalty of two years.

[2]                Counsel for the Crown put before me a series of three decisions on sentencing, the first of which is R. v. Reinhard Gustav Mueller.  That is an Alberta decision out of the Judicial District of Edmonton, and in somewhat parallel circumstances, the court imposed a sentence of 16 months' imprisonment.   I mean no disrespect to that court or to Crown counsel who put the case before me, but such a sentence in this case, in my view, would not meet and would be completely out of keeping with the sentencing principles that are, as I understand them, applied in this province.

[3]                To start with, the maximum penalty is generally considered to be reserved for the worst possible offender and the worst possible circumstances.  Secondly, such a sentence must leave room, if I can put it that way, for subsequent sentences in the event of subsequent convictions, which one would ordinarily consider to be a worse set of circumstances.  I cannot for a moment accept that it is an appropriate sentence, even for this offence, for a first-time offender to be sentenced to 16 months' imprisonment as his first custodial sentence and indeed his first conviction of any kind.

[4]                I understand that the case is somewhat parallel and the circumstances are similar, and in many respects, the sentencing considerations are parallel.

[5]                This is a relatively young man with no prior criminal record, but the offence of which he has been found guilty is a serious offence which, although unusual, has been found to be constitutionally valid by the Supreme Court of Canada.  The sentencing considerations include, obviously, both specific and general deterrence, together with the other factors set out as sentencing principles in s. 718 and the following sections of the Criminal Code.  It is also one which, under the parameters of s. 718.2, is aggravated by the nature of the offence and the fact that it involves wilfully promoting hatred.

[6]                With that having been said, in my view, the appropriate sentence in the present case is on the order of six months in prison.  Such a sentence cannot and will not be served in any way as a conditional sentence.  It is a sentence which, by the nature of this offence and the way it was committed, in my view is inappropriate to be served as a conditional sentence.

[7]                Mr. Noble has served a total of 40 days in pre-trial custody, or custody during the course of his trial.  He is entitled to credit for that time at an increased rate.  I would credit him with two months towards that six-month sentence and impose a sentence of four months' incarceration.

[8]                That will be followed by three years' probation.  That probation order will include the standard term that he must keep the peace and be of good behaviour and appear before the court when required to do so.  He must notify his probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation.

[9]                Those are the mandatory conditions.

[10]            I have reviewed the conditions suggested by the Crown, and in particular, those which parallel the conditions imposed in the Mueller case.

[11]            Over the term of the probation order, there will be a prohibition on the accused's accessing the Internet, a further prohibition from him having Internet service to his residence, and from being in attendance at any establishment whose primary business is the provision of Internet access to the public.

[12]            There will be a prohibition on possessing any modem or other device that would enable him to access the Internet, and there will be a condition permitting police officers or probation officers to allow them to obtain personal subscriber information from any Internet service provider for the purpose of enforcing that prohibition.

[13]            I am not prepared to nor will I authorize in advance a warrantless entry into Mr. Noble's residence at any time.  I presume that if he is in breach of the terms of that probation order, it can be determined and effected.

[14]            Under s. 490.1 of the Criminal Code, I will make an order for the forfeiture and destruction of the computer equipment used in the course of this offence, and the Crown may make application with respect to the other material if they choose to do so.

[15]            Mr. Fulmer, is there anything further?

[16]            MR. FULMER:  No, My Lord.  No.

[17]            THE COURT:  We will adjourn.

Parrett J.