R. v. Van Buskirk, 2013 BCCA 452 (CanLII)
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation: | R. v. Van Buskirk, |
| 2013 BCCA 452 |
Date: 20131011
Docket: CA036409
Between:
Regina
Respondent
And
Brent William Van Buskirk
Appellant
Before: | The Honourable Mr. Justice Hall The Honourable Madam Justice Garson The Honourable Mr. Justice Willcock |
On appeal from: An order of the Supreme Court of British Columbia, dated
December 10, 2007 (R. v. Van Buskirk, 2007 BCSC 1925,
Victoria Docket 130269 & 130270).
Oral Reasons for Judgment
Counsel for the Appellant: | E. Purtzki |
Counsel for the Respondent: | M. Brundrett |
Place and Date of Hearing: | Vancouver, British Columbia October 11, 2013 |
Place and Date of Judgment: | Vancouver, British Columbia October 11, 2013 |
Summary:
The offender was sentenced at once for a first degree murder as a youth and two conspiracies to commit murder as an adult. The trial judge imposed the maximum sentence under the Youth Criminal Justice Act for the first degree murder conviction under section 42(2)(q)(i): the equivalent, after taking account of pre-trial custody, of 6 years of incarceration and 4 years conditional supervision. Sentences of 7 and 5 years were imposed for the conspiracies to commit murder. The latter sentences were concurrent to each other but consecutive to the murder sentence. In subsequent proceedings, the Federal Court considered the effect of these sentences and held that the effect of s. 743.5 of the Criminal Code, requiring the youth sentences to be treated as though they were criminal code sentences, was that the two portions of the youth sentence were combined to a single custodial sentence for the purposes of calculating parole. The offender appealed the length of the sentence, arguing that the sentence calculated by Correctional Services did not reflect the trial judge’s intention and that the effective sentence was unfit.
Held: appeal dismissed. The combined sentences are not demonstrably unfit per the totality principle. The sentencing judge imposed a fit sentence in relation to the conspiracies and found that the circumstances of the murder called for the imposition of the maximum sentence. The offender represents a grave threat to society and the sentence imposed is not unduly long or harsh.
Introduction
[1] WILLCOCK J.A.: This is an appeal from sentences imposed by Mr. Justice Groberman J., as he then was, on November 30 and December 10, 2007.
[2] On November 30, 2007, following his guilty plea and conviction for first-degree murder contrary to s. 231(2) of the Criminal Code, R.S.C. 1985, c. C-46 the appellant was sentenced to four years and two months committal to custody and four years placement on conditional supervision (the equivalent, after taking into account pretrial custody, of the maximum permissible sentence permitted under s. 42(2) of the Youth Criminal Justice Act, S.C. 2002, c. 1):
(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence… if the offence is first degree murder... the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:
(q) order the young person to serve a sentence not to exceed
(i) in the case of first degree murder, ten years comprised of
(a) a committal to custody, to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody), exceed six years from the date of committal, and
(b) a placement under conditional supervision to be served in the community in accordance with section 105, …
[3] On December 10, 2007 the appellant was sentenced to seven years of imprisonment and five years of imprisonment for two conspiracies to commit murder (effective sentences of 8 and 6 years reduced to take into account pre-trial custody). Those sentences of imprisonment were ordered to be served concurrent to each other but consecutive to the youth sentence.
[4] These sentences were imposed while the appellant was serving a sentence under the Criminal Code for Contempt of Court for which he had been cited and sentenced in late 2006.
[5] After the 2007 sentencing for the murder and conspiracies, the Correctional Service of Canada calculated the total sentences of imprisonment to be served by the appellant pursuant to s. 743.5(2) of the Criminal Code. That provision reads as follows:
743.5 (2) If … a youth sentence is imposed on a person under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act while the young person or adult is under sentence of imprisonment imposed under an Act of Parliament other than the Youth Criminal Justice Act, the disposition or youth sentence shall be dealt with, for all purposes under this Act or any other Act of Parliament, as if it had been a sentence imposed under this Act.
(3) For greater certainty, the following are deemed to constitute one sentence of imprisonment for the purposes of section 139 of the Corrections and Conditional Release Act:
(a) for the purposes of subsection (1), the remainder of the youth sentence or disposition and the subsequent term of imprisonment; and
(b) for the purposes of subsection (2), the term of imprisonment and the subsequent youth sentence or disposition.
[6] The Correctional Service treated the entire youth sentence, including that portion of the sentence to be served on conditional supervision, as a single sentence of imprisonment of 98 months, for the purposes of calculating his day parole, full parole and statutory release dates. As a result of that calculation, the total sentences of imprisonment to be served by the appellant are an actual term of 17 years and two months and the effective punishment, after consideration of presentence custody, of 20 years.
[7] The appeal first came on for hearing on January 18, 2012. The appellant then intended to urge upon the Court an interpretation of the youth sentence that differed from the position taken by the Correctional Service. No judicial review proceedings had yet been initiated. This court directed a stay of the appeal, with liberty to apply for a dissolution of the stay in the event of a determination by the Federal Court that the decision of the Correctional Service was correct (R. v. Van Buskirk, 2012 BCCA 34)
[8] That issue, which determines the effective sentence, has now been determined by the Federal Court of Canada, against the appellant (2012 FC 1463). That stay has now been dissolved.
[9] As a result of the Federal Court decision upholding the corrections calculation, the appellant says the effective punishment he will serve is four years longer than intended by the sentencing judge and is demonstrably unfit. The appellant argues the conspiracy sentences should be varied so as to meet the intent of the sentencing judge and so as not to offend the totality principle. The appellant says the sentences for the two conspiracies should be varied to three years and one year, concurrent to each other but consecutive to the youth sentence.
The Offences and Sentences Imposed
[10] In 2006 the appellant was cited by Mr. Justice Shabbits for contempt in refusing to be sworn and give evidence during the course of trial of Mohammed Saeed Abu-Sharife for the murder of Raffi Nutt. On December 21, 2006 he was sentenced by Mr. Justice Grist to two years in custody for reasons reported at 2006 BCSC 1981 (R. v. Abu-Sharife (B.W.V.B)). The contempt was described at paragraphs 2 to 6 of the reasons for judgment in the following terms:
[2] ...The case for the Crown in both these proceedings is that Abu-Sharife hired B.W.V.B. to commit the murder. Mr. Nutt died as the result of a gunshot to the back of his head.
[3] Following B.W.V.B.’s refusal to give evidence, the circumstantial case against Abu-Sharife was found to be insufficient to found conviction and he was found not guilty.
[4] The evidence at trial was that Abu-Sharife and B.W.V.B. were associates in the trafficking of drugs. The evidence also established that Abu-Sharife would resort to violence in connection with his criminal activity, threatening to send B.W.V.B. to do harm to those he threatened.
[5] Mr. Justice Shabbits, in his Reasons for Judgment, found that the evidence heard during the course of the trial established to the exclusion of other reasonable inferences that B.W.V.B. shot and killed the victim. There were a number of telephone contacts between Abu-Sharife and B.W.V.B. before the shooting. There was also evidence of conversations between them after the event, during which they discussed measures B.W.V.B. could take to avoid being implicated in the killing.
[6] It is clear from this that the contemnor had material evidence to give concerning his dealings with Abu-Sharife in connection with the murder that may well have influenced the outcome of the trial, either through confirmation of the Crown’s case or exoneration of the accused.
[11] The appellant was found to have frustrated the court’s ability to render a verdict in relation to a most serious offence.
[12] The appellant subsequently pleaded guilty to the first-degree murder of Mr. Nutt and, as part of the same arrangement with the Crown, pleaded guilty to two conspiracy charges. He came before Mr. Justice Groberman for sentencing on November 30 and December 7 and 10, 2007. Reasons for judgment in relation to the murder are indexed at 2007 BCSC 1924 and the reasons for judgment in relation to the conspiracies are indexed at 2007 BCSC 1925.
[13] The murder was committed by the appellant on August 29, 2004, days before his 18th birthday. The sentencing judge noted that both the Crown and defence agreed the crime was one for which the maximum youth sentence should be imposed.
[14] The circumstances of the murder were described at paragraphs 7-8 of the judgment as follows:
[7] …At the time of the murder Mr. Van Buskirk was hiding in a treed area behind a chain-link fence adjacent to Mr. Nutt’s residence in a residential area of Saanich, which is part of Greater Victoria. He was armed with a .45 calibre handgun and shot Mr. Nutt once in the back of the head. It appears that Mr. Nutt died instantaneously. It is apparent that the murder was well planned. Mr. Van Buskirk was able to get away from the scene of the crime without being detected, and it was only months later, after obtaining a wiretap authorization in respect of another suspect, that suspicion began to focus on Mr. Van Buskirk.
[8] While I have been given few details of the crime, it is fairly clear that Mr. Van Buskirk was a hired gun. His only motives for the murder, as far as I can determine, were remuneration and the opportunity to launch himself on a career as a professional hit-man.
[15] The appellant was said to have had solid support from his family throughout his life. He had not suffered a deprived upbringing. His motives for the murder were said to be profit and advancement in a career as a professional killer. The offence was described by the sentencing judge as “a murder motivated only by money and perhaps self-aggrandizement” and as “particularly heinous” (para. 12).
[16] The sentencing judge found, at paragraph 13 of his reasons for judgment: “I am satisfied that counsel for the Crown and counsel for the defence are correct in suggesting that the court should impose the maximum permissible sentence here, which is 10 years, with a maximum of six years to be spent in custody.”
[17] The sentencing judge found the sentence for murder should be served consecutively to the contempt sentence. He was of the view that the contempt sentence should be fully served and the sentence for murder ought to commence upon the conclusion of that sentence.
[18] The conspiracies to which the appellant pled guilty were also very serious and troubling. The first conspiracy also involved Mr. Abu-Sharife. Intercepted communications established that in December 2004, approximately 4 months after the murder of Mr. Nutt, the appellant entered into an agreement with Mr. Abu-Sharife to murder persons in the lower mainland by detonating a quantity of C-4 in a nightclub. It was expected that a number of persons would be killed in addition to those targeted. The appellant acted on the conspiracy by seeking C-4. The plan was abandoned when it could not be obtained. Mr. Abu-Sharife pleaded guilty to a conspiracy charge and was given an effective sentence of eight years. The appellant was found to have engaged in callous conversations and to have preferred a scenario involving many deaths.
[19] The second conspiracy was between the appellant and an individual identified as R.S.F. The appellant agreed to kill an unidentified person in Whistler and engaged in some preparatory work pursuant to that agreement. The conspiracy was not pursued beyond the preliminary stage. The sentencing judge said this conspiracy was somewhat less serious than the first but there was no doubt the appellant fully intended to carry out a murder.
[20] The Crown sought a sentence of nine years on each of the conspiracy counts, consecutive to each other and to the sentence for murder. The Crown’s submission may have been founded upon the assumption that the sentences would be consecutive to the custodial portion only of the youth murder sentence. At paragraph 13 of the reasons for judgment the sentencing judge described the Crown submission with respect to the effective sentence as follows:
The Crown submits that the accused should be sentenced to nine years on each of the conspiracy counts and that the sentences should be consecutive to one another, for a total sentence of 18 years. The Crown suggests that these consecutive sentences should be concurrent to the sentence that Mr. Van Buskirk received for murder, which was an effective sentence of six years incarceration, less time served. The result would be that Mr. Van Buskirk's earliest parole date would fall shortly after the conclusion of the custodial portion of the murder sentence. [Emphasis added.]
[21] The defence sought a sentence of eight years on the first conspiracy, a lower sentence on the second, and an order that the sentences should be concurrent with each other and concurrent with the murder sentence.
[22] The principal issue faced by the sentencing judge was described as “how the various sentences received by Mr. Van Buskirk should fit together”. He addressed that problem as follows:
[25] …In my view, the conspiracy sentences should be concurrent with one another. These conspiracies took place at around the same time, and while not, strictly speaking, related, were both part of Mr. Van Buskirk’s misguided plans to become a hit-man. If the sentences were made consecutive, the period which Mr. Van Buskirk would have to serve for the two conspiracies would be excessive.
[26] In making its submission, the Crown argued that I should consider the murder as well, and that by making the conspiracy sentences consecutive to one another but concurrent with the murder sentence, the total sentence would be an appropriate one. Whether or not that is so, I do not believe that it is appropriate to give a longer sentence for the conspiracies than would otherwise be justified by them simply because the youth sentence that Mr. Van Buskirk has received for first degree murder is relatively short. I do not wish to suggest that the Crown argued that I should use the conspiracy sentences to “top up” a short sentence for murder, but I do have concern that that would be the effect of giving an unduly lengthy sentence for the two conspiracies. Mr. Van Buskirk has been sentenced on the murder. Any deficiency in that sentence cannot be addressed by a harsher than normal sentence on the conspiracies.
[27] I also disagree with counsel for the accused in his suggestion that the conspiracy sentences should be concurrent with the time being served for murder. This would have the effect of imposing no genuine additional punishment for the conspiracies, which were separated in time from the murder by several months, and which were themselves separate and very grave crimes. In my view, it is appropriate that the conspiracy sentences be concurrent with one another, but consecutive to the murder sentence.
[28] I pause to note also that the accused is also serving a sentence for contempt of court for failure to give evidence when subpoenaed to appear at the murder trial of Mr. Abu‑Sharife with respect to the Ravi Nutt murder. Mr. Van Buskirk’s murder sentence is consecutive to that sentence, and so will be the conspiracy sentences.
[31] I am satisfied that the totality of the sentences that Mr. Van Buskirk will serve is not unduly harsh and not of a crushing nature. The totality is, to be sure, lengthy, but no more lengthy than is necessary in the circumstances to satisfy the purposes and objectives of sentencing.
[23] He concluded:
[36] In summary, then, Mr. Van Buskirk, taking into account all the factors in these cases, and giving you one year's credit for time served, I am sentencing you to an additional period of seven years on the Abu‑Sharife matter and five years on the R.S.F. matter. Those sentences will be served concurrently with one another, but consecutive to the youth sentence for murder that you have received and consecutive to the contempt of court sentence that you are currently serving.
Arguments
[24] The appellant says the provisions of the Youth Criminal Justice Act have what are said to be the extraordinary or astonishing effect of overriding the Youth Justice Court’s sentence of a committal to custody and placement on conditional supervision to be served in the community, and substituting in its place a single committal to custody. He says that extraordinary effect was not explicitly recognized in the reasons for sentencing and, to the contrary, the reasons demonstrate that the sentencing judge intended the appellant to serve total sentences of imprisonment of 13 years two months, four years less than the actual sentences of imprisonment the appellant must serve.
[25] The appellant refers the court to submissions of counsel and to the reasons for judgment in relation to sentencing for the murder as some evidence of the court’s intention to impose a specific custodial sentence, followed by a non-custodial sentence.
[26] In relation to the conspiracy sentences, counsel for the appellant says there were no submissions to the court with respect to the effect of the operation of s. 743.5 of the Criminal Code in relation to consecutive sentences. The appellant says the trial judge asked if there was a provision dealing with sentences consecutive to a sentence served in the community and was not referred to the relevant provisions of the Criminal Code. Counsel for the appellant points to submissions of the Crown on sentencing in relation to the conspiracies that suggest the conspiracy sentences will be consecutive to the custodial portion of the youth sentence. There was some discussion of the manner in which sentences could be imposed so as not to make moot the early release date to community supervision under the Youth Criminal Justice Act. In the course of those submissions, however, Crown counsel properly noted that there are limits to the consideration that the sentencing judge should give to release dates, in particular.
[27] Counsel for the appellant says the intention of the sentencing judge is reflected in the following passage from paragraph 13 of the reasons:
[13] …The Crown submits that the accused should be sentenced to nine years on each of the conspiracy counts and that the sentences should be consecutive to one another, for a total sentence of 18 years. The Crown suggests that these consecutive sentences should be concurrent to the sentence that Mr. Van Buskirk received for murder, which was an effective sentence of six years incarceration, less time served. The result would be that Mr. Van Buskirk’s earliest parole date would fall shortly after the conclusion of the custodial portion of the murder sentence. [Emphasis added.]
[28] Counsel for the appellant submits that the sentences were unfit in light of the totality principle codified in s. 718.2(c) of the Criminal Code. That provision requires the court to look at whether the combined sentence is unduly long or harsh.
[29] Effective punishment of imprisonment of 20 years is said to be unfit and to violate the totality principle. The appellant was young person when the murder was committed and 18 when the conspiracies were committed. He pled guilty to all three offenses and the Crown accepted and the sentencing judge found that the appellant was not without prospects for rehabilitation. The appellant says, regardless of the intent of the sentencing judge, the conspiracy sentences should be varied from seven years to three years and five years to one year to be served concurrently but consecutive to the sentences being served. The appellant does not point to appropriate comparators with a view toward establishing that the sentences are, cumulatively, unfit.
[30] In response, the Crown says the sentences for conspiracy to commit murder are not demonstrably unfit and should not be varied by the court. The offences, by their nature, involve planning and deliberation and contemplated the deliberate taking of more than one life. At the time the conspiracy sentences were imposed the appellant is said to have starkly demonstrated the level of danger that he clearly represents.
[31] The Crown says the trial judge was aware of the possibility the four-year conditional supervision portion of the underlying sentence would be converted to conventional incarceration. The prosecutor advised the sentencing judge “the Crown can and in this case is very likely to make an application that he be held in custody for the duration of the sentence.” (Transcript p. 72, l. 21-24). The sentencing judge was clearly aware that a consecutive adult sentence would begin to run at the commencement of the conditional release to community supervision “at best” (Crown submission at Transcript p. 73). The sentencing judge was also aware of the Crown’s position that a consecutive sentence would only begin on the earliest possible date if, on review of the youth sentence, the youth court justice ordered the offender’s release (Crown submission at p. 130).
[32] Relying upon the decision of this Court in R. v. Bradbury, 2013 BCCA 280, the Crown says:
[34] Thus, reliance on predictive evidence or information about the likelihood of statutory remission or parole eligibility has never been considered to be a relevant factor in determining a fit sentence or in calculating credit for pre-sentence custody: Bernier, Orr, and Wust. Rather, the imposition of a sentence and the administration or management of that sentence have been viewed as different undertakings by different authorities with different mandates within the justice system, and are not to be conflated.
[33] In any event, the Crown says it is not clear from the reasons for judgment that release eligibility on a merged sentence played a significant role in determining the sentence imposed in relation to the conspiracies.
[34] Further, the Crown says an eight year sentence for the first conspiracy “may be seen as a modest one” having regard to R. v. Khawaja, 2012 SCC 69.
[35] Finally, Crown says that, while parole considerations are strictly secondary on sentencing, the Parole Board may take into account the removal of the earlier four-year conditional supervision when considering eligibility for parole. Relying on R. v. Bernier, 2003 BCCA 134,the Crown argues the court ought not to “trespass” into the ambit of the National Parole Board.
Analysis
[36] In my view, we are not assisted by references to the submissions on sentencing or the reasons for judgment in relation to the murder. Where the Crown sought a direction that six years less one day be spent in custody and where the sentencing judge referred to the custodial and non-custodial portions of the murder sentence they were referring to the mandatory provisions of the Criminal Code. It was not open to the Crown to seek a longer custodial sentence or for the sentencing judge to impose one.
[37] In relation to the conspiracies, the sentencing judge explicitly set out his reasons for imposing a sentence consecutive to the sentence imposed for the murder. The sentencing judge clearly rejected the submission that because the statute limited the sentence that might be imposed in relation to the murder committed by the appellant while he was a youth, a longer sentence ought to be imposed in relation to the conspiracies. He noted, “[a]ny deficiency in that sentence cannot be addressed by a harsher than normal sentence on the conspiracies.”
[38] The sentencing judge clearly found that the circumstances of the murder called for the imposition of the maximum sentence that could be imposed under the Youth Criminal Justice Act. He appears to have arrived at a fit sentence in relation to the conspiracies on the assumption that those sentences ought to follow the maximum sentence that might be imposed upon a youth for a first-degree murder.
[39] The sentencing judge was aware of the possibility that the imposition of the sentence for the conspiracies might result in the Crown taking the position that the offender ought to serve the 10-year youth sentence in custody. The sentencing judge was aware of the possibility that the effective sentence would amount to 20 years in custody.
[40] Whether or not the sentencing judge intended to impose that sentence, the obligation that falls to this Court on a sentence appeal is to determine whether the sentences imposed are demonstrably unfit: R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500.
[41] The appellant has amply demonstrated that he represents a grave threat to public safety. The sentences he has received may ameliorate that threat in at least two ways. A lengthy period of incarceration separates him from society and should demonstrate to him the gravity of his conduct. This will serve the purpose of individual deterrence. Also, a lengthy period of supervision to sentence expiry should serve to enhance public safety.
[42] The appellant was convicted of a most callous act of murder, committed for the basest of motives. He subsequently engaged in a conspiracy to commit murder that would involve the taking of many lives and expressed a remarkable indifference to the prospect of doing so. In my view, it cannot be said that the effective sentence imposed in relation to the murder and the conspiracies, consecutive to the sentence he was already serving, was unduly long or harsh.
Judgment
[43] I would dismiss the appeal.
[44] HALL J.A.: I agree.
[45] GARSON J.A.: I agree.
[46] HALL J.A.: The sentence appeal is dismissed.
“The Honourable Mr. Justice Willcock”
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