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R. v. T.A., 2011 BCPC 281 (CanLII)
Citation: | R. v. T.A. | Date: | 20110808 | |||
2011 BCPC 0281 | File Nos: | 5121-2-C, 5165-1 | ||||
| Registry: | North Vancouver | ||||
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA | ||||||
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T.A. | ||||||
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EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER | ||||||
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Counsel for the Crown: | M. Ruttan | |||||
Counsel for the Defendant: | J. Allingham | |||||
Place of Hearing: | North Vancouver, B.C. | |||||
Date of Judgment: | August 8, 2011 | |||||
[1] THE COURT: T.A. is a youth who is before me, having pleaded guilty on a North Vancouver Information to a number of different counts. On Information 5121-C-2 he pleaded guilty to a total of 14 counts, all of the same offence being conveying by telephone or otherwise, information that he knew to be false, with intent to injure or alarm. The first count occurred February 11th, and the offences go through to February 13th.
[2] He has also pleaded guilty to a Surrey Information (their file 18424, North Vancouver transfer file 5165) which alleges similar events arising on February 10th and contains four counts. The first alleges conveying by telephone information he knew to be false with intent to injure or alarm, and the second is a mischief by obstructing the lawful use or enjoyment of property. These two counts relate to the Sandman Hotel and a tenant of that hotel and arise February 10th, 2011. Count three arises on February 11th, when he falsely represented himself to be a police constable from Spokane in a call to the Royal Canadian Mounted Police in Surrey. Count four arises June 19th, when he pretended to be a Royal Canadian Mounted Police officer from Surrey and called a child's mother and gave false information to her which would clearly have caused her concern. I will get to all of the facts momentarily.
[3] With respect to Count 1, he called a room and told the tenant to put wet towels along the door because there was a gas leak and he would need to activate the fire suppression system. The tenant was told to crack or remove the bulb that was in each of the sprinkler attachments in his room and the tenant did so, accepting that the caller was in fact a person in authority from the Fire Department, and of course the room was then flooded with water.
[4] On the same night, using the same ploy he called another tenant. He told this tenant that they had to make sure the sprinklers didn't go on and that there was a problem with the sprinklers. He said if the sprinklers went on there was asbestos in the walls and arsenic poisoning that had been put out for rats and this would be a risk to the person in the room. The tenant was told to activate their sprinkler system supposedly to prevent it from going off, but of course it went off.
[5] I have had the benefit of hearing T.A. on the telephone making these false calls to the two different tenants of the North Vancouver Hotel in the late hours of February 11th. T.A. is brazen and confident, to use the Crown's words, in these calls. He plays a very convincing role. He was persistent with these people in his ruse, causing them eventually to accept what he had to say and causing damage. One can hear him on the tape laughing as the person in the room is complaining about the fact that doing as he said hasn't not set off the sprinklers, but rather has activated the sprinklers. It is clear he was enjoying himself at the expense of not only the tenants in the hotel, but at the hotel itself.
[6] Count 3 involves the same hotel. Again he calls a tenant and says he is from the Fire Department. He tells them that they have to reset the fire alarm and tells them to pull the fire alarm for a few seconds. This causes the Fire Department to attend. Immediately after he calls another room, and tells them the sprinkler needs to be deactivated and that this can be done by cracking the bulbs, which of course sets off the sprinklers in that room. At that time he convinces the tenant of the room to do what he is saying, because the Fire Department is by that point in time in attendance at the hotel.
[7] He called the police at 12:50 in the morning on February 12th and told the police that he was a person who had been arrested three weeks before and was mad, and that is why he made the calls. He called again the next day and told the RCMP that he was a person named Bobby and that these things had been done because he was part of something called Prank.Net and that he was receiving $240 for each prank.
[8] So far there is $55,000 which has been paid out by that hotel's insurer as a result of damage T.A. caused to the hotel. The hotel itself had to pay $5,000 as deductible. The hotel has also changed how they deal with calls. All telephone calls now have to go through the front desk.
[9] I gather that T.A. received $480 for his activities on that evening.
[10] T.A. then went on to commit further offences of the same nature. This time he focused on or was targeting various restaurants in North Vancouver, and these occurred on February 12th and 13th.
[11] Count 6 involves him calling a local McDonald's restaurant. He impersonated a person from the Fire Department, convinced the manager that they should activate the sprinkler in order to test it. They did so and the restaurant was flooded. There is no estimate of damage from that victim.
[12] On the same date he called an A & W restaurant. This was just after midnight. He told them it was the Fire Department calling and that there was a silent alarm going off and they would need to activate the sprinklers. It turns out that restaurant did not have a sprinkler system, only a fire suppression system. He convinced the manager to activate that fire suppression system, which filled the kitchen with foam. He then told the manager that he was an idiot. This caused somewhere between $5,500 and $6,000 damage to the restaurant.
[13] Count 9 occurs February 13th. Once again T.A. impersonated a fire marshal and convinced the manager of a Dennys restaurant to pull the fire suppression pin in the kitchen. The kitchen was filled with fire suppression foam. There are $1,800 in lost sales estimated and a $1,500 cost to recharge the extinguishers.
[14] Count 10 occurs the same day at the Pantry restaurant. Here T.A. convinced the manager to pull the sprinkler pin in the kitchen which activated the sprinklers. There was $10,000 loss to that restaurant.
[15] On Count 13 he called the Mumbai Masala restaurant and told them he was with the Vancouver Fire Department and they were testing the fire alarm, and that the person needed to pull the pin on the sprinklers in the kitchen. That person did so. The kitchen was flooded and T.A. hung up, saying "You've been pranked." Apparently the flood caused the elevator in the adjacent building to be disabled for some period of time. There was an estimated $10,000 loss as a result of that incident.
[16] Count 14 involves the Hurricane Grill. Again he calls pretending to be someone from the Fire Department, telling the manager they need to reset the sprinkler system and that the pin needs to be pulled. This was done. The restaurant was flooded. T.A. says to the manager -- he's laughing and says to him "Have a good night." There was $9,500 damage done on that incident.
[17] Count 15 involves The District restaurant. Again he calls, same ruse, pretending to be someone from the Fire Department and told them that they need to activate their sprinklers to reset the alarm system. The person does so. There is a flood and $3,650 damage is done on that matter.
[18] Count 16 involves the White Spot restaurant. Again he is pretending to be someone from the Fire Department and that they need to reset the system and in order to do so they need to pull the pin on the sprinklers. Of course it sets the sprinklers off. He tells that person on the phone it is a prank. All we know of the damage done there is that it cost $1,500 to reset the system.
[19] Count 17 involves Brown's restaurant and the same ruse. He phones up, pretends to be from the Fire Department, tells them that they need to reset the system and that they will need to pull the pin on the sprinklers. That flood caused $4,000 damage.
[20] Count 18 also occurs February 13th. He calls Nando's, says he is the fire marshal, again tells them that they need to reset the system and that they will have to pull the pin on the kitchen sprinklers which is done, and the kitchen is flooded. He again tells the person that they have been pranked, or that it was a prank.
[21] The accused was identified as a result of the investigation of a reporter who went on the website Prank.Net. He pretended to be someone interested in pranking, if that's a verb, and he encountered what turned out to be T.A. on that site and had online conversations with him. He was sent what we heard today in court, which was T.A.'s recording of his calls to the North Vancouver Hotel respecting Counts 1 and 2 on this Information. He obtained an online identity of T. 44, and as a result of that the police were able to conclude their investigation.
[22] I will now turn to the second Information I have referred to from Surrey. The first two charges are mischief of conveying false information arising February 10th and involve T.A. effectively committing the same kind of prank: calling a hotel room, convincing the person in the hotel room that there is a gas leak in the room below, and they need to put a wet towel under the door and turn off the fireplace, the Fire Department was present and would be attending to the room when it was safe to do so.
[23] He then told the person that the situation had worsened and they needed to remove the bulbs from or crack the bulbs on the sprinkler system. This takes them some time. He continues to encourage them to do so. Eventually the tenant in the room succeeds and the sprinkler system is activated. It flooded the room and caused a $10,000 loss.
[24] Count 3 on that Information involves T.A. calling the RCMP, pretending to be a police officer from Spokane and encouraging them to go and arrest someone at the Sandman Hotel and then take them to the Peace Arch border crossing. Thankfully, the police don't fall for this and nothing comes of that call.
[25] More seriously is that on June 19th - and this is while T.A. is on bail for the North Vancouver matters - he phones a friend's mother in the middle of the night. He pretends to be the police school liaison officer in the area. He tells the mother that her daughter is now missing, was last seen intoxicated, that she had stolen a purse and threatened a friend she was with, that she may well be with a boyfriend who was someone living at a shelter. He asked for a photograph to be emailed to him.
[26] As a result of this call the mother went out searching for her daughter. It turned out the address which had been given to mother was T.A.'s own home address. He then called back as I understood it a second time, again continuing on with this kind of information. Her son listened in. I'm not sure whether that was on the first or second call; I assume it's the second. He recognized T.A.'s voice as being that of a friend of the alleged missing daughter.
[27] The daughter was later interviewed by the police. She said she knew T.A. and she believed that his calls to her mother were sparked by a potential relationship that she might have with another young man.
[28] Clearly, all of these offences are very aggravated. In particular, the fact that T.A. while on bail for a series of very serious offences, and I haven't had an opportunity to total up the total property damage he caused in February, he continues making prank calls. He was taken into custody briefly in April. He made prank calls from the institution.
[29] So all in all, T.A.'s conduct is aggravated by the number of different pranks, the extent of damage he has caused, and the fact that his behaviour continues. It is also aggravated by the fact that T.A. clearly enjoys this activity. He is noted to be laughing at people, calling them idiots and otherwise clearly getting a great deal out of his antisocial behaviour.
[30] I have rarely read a psychiatric report which is so negative in terms of prognosis for a youth. Dr. Janke, an experienced psychiatrist, has nothing to offer the Court which may assist T.A.
[31] T.A. has, I should mention, a criminal history. It is aggravated as it is for similar offences and goes back a number of years. In May of 2008 he was convicted of conveying false messages and received a two-year intensive supervision and support order. He called a crisis line pretending to be suicidal, fired off or made a sound that appeared to be a gun, and Emergency Health Services attended. A conviction on May 21st of 2009 relates to when he was working at his father's place of employment. There was a man there he felt had slighted him. T.A. phoned his wife, this man's wife and told her that her husband had been in a serious motor vehicle accident and was in the hospital. He then called again and told her her husband was deceased. For that offence he received 12 months probation and a six-month DCSO, and on December 14th respecting convictions for failure to comply he received further 12 months probation, 10 days custody and five days supervision in the community. Those breaches related to using a telephone, not attending school, not attending counselling and not complying with his curfew.
[32] On April 27th, 2011 he was again convicted of failure to comply and received eight days custody and nine days community supervision. Those were in relation to failing to attend appointments and failing to reside.
[33] In any event, I will simply read the summary of Dr. Janke in the psychiatric report.
With T.A. we have a young man who now has a well-established pattern of engaging in manipulative and destructive behaviour in the community. He has been exposed to a wide variety of therapeutic settings and has been placed in environments employing a high degree of behaviour modification techniques. This has failed to produce any significant change in his behaviour.
He has presented as a manipulative individual who engages in activities either for straight profit for himself or for his own enjoyment and pleasure. This often involves somewhat sadistic behaviours towards others that involve exploiting psychological weaknesses, inflicting psychological harm or inducing individuals to engage in behaviours that have resulted in property damage.
At this time the primary diagnosis would be that of an emerging severe personality disorder with mixed histrionic, narcissistic and antisocial traits. There has been some indication that when he is in a very highly and structured setting where immediate consequences for inappropriate behaviours are experienced, T.A.'s behaviour is somewhat improved. There is no indication that he will be able to reasonably comply with expectations in the community unless he is under extremely strict supervision.
I would note that neither of his parents appear to be able to effectively monitor or control his behaviour. At the present time there is no psychiatric or medical intervention that would be expected to produce any meaningful change in T.A.'s behaviour.
It would be the strong recommendation of the assessment team that the courts deal with T.A.'s criminal behaviour with consequences that are proportionate to the severity of his criminal behaviour and to the repetitive nature of his criminal behaviour.
[34] There is also a psychosocial report that was prepared along with the pre-sentence report. The psychosocial report simply supports what Dr. Janke found in his summary and conclusions. However, I will note that that report says as follows with respect to a psychologist that he has seen, who says:
T.A. believes that when someone is on his side he will be ingratiating and overly polite and compliant. However, if he believes that someone is not useful to him or has wronged him, he will become rude, manipulative and vindictive.
[35] The probation officer reported to her that most of the time that T.A. was on her caseload he was extremely polite. However, when his probation ended briefly in November of 2010 he called and left rude and inappropriate messages on her voice mail.
[36] The psychologist noted that he appears better able to mitigate his behaviour when he is attending counselling regularly, and when he began missing appointments during his last period of time in the community his behaviour began to escalate and he began to cause more and more problems. She also echoes what Dr. Janke says:
None of the sources contacted were able to suggest any other types of interventions or programs which had been useful in changing Taymour's behaviour for any length of time.
[37] In the pre-sentence report it refers to his history and the various interventions that have occurred, and previous diagnoses also support what Dr. Janke has now concluded.
With respect to his response to youth justice services in the community (the pre-sentence report writer says) this writer has been supervising this young person since November 2009. While in the community T. has shown a pattern of non-compliance. T.'s pattern tends to be of compliance for a few weeks upon his release from custody. However, after a few weeks of attending scheduled probation appointments and appointments with his ISSP worker and YFPS therapist, he tends to start his pattern of non-compliance and often becomes AWOL and involved in new offences or charges.
[38] With respect to his attitude towards the offence, although he has accepted responsibility the pre-sentence report officer says he has shown minimal remorse. He talked about getting involved with Prank.Net, that the various businesses were selected randomly, and that he earned money from each successful prank.
[39] T.A. has provided a letter to the Court in which he very eloquently sets out how sorry he is and how he acknowledges that his offences caused significant damage. He has also spoken in Court today, saying that he is going to change his ways and not conduct himself in this fashion any further.
[40] Given the psychiatric assessment of T.A., I can place little weight on anything T.A. has to say about feeling any particular remorse or responsibility for his actions, nor can I place any weight on his assertion that he will not offend again in the future, or that he recognizes in any meaningful way the impact his behaviours have had on the victims and the community.
[41] As his counsel so aptly put it, it is up to T.A. at this point in time. There is nothing further that Corrections, psychologists, psychiatrists or medical professionals can do for him. He is an intelligent young fellow who tests in the average range in all respects, and he simply chooses to engage in these behaviours for his own entertainment. There is also an indication that he chooses to engage in these behaviours so that he gains the esteem of his peers in the Youth Custody Centre and outside of custody.
[42] The only mitigating factor that I see in this matter, taking into account that he is a youth and has a somewhat limited record, is the fact that he has entered guilty pleas. There is no meaningful way for T.A. to make restitution at this stage of his life, and so all of these businesses and insurers will be on the hook for the hundreds of thousands of dollars of damage that he has caused, all so that he could get a laugh.
[43] What is of particular concern is that T.A. made prank calls while in custody awaiting release on the New Westminster breaches, and that despite being on bail for the North Vancouver matters he made another prank call to a friend's mother, alarming her in the middle of the night and suggesting that her daughter was at risk. It is clear from that that T.A. has still not got the message.
[44] Counsel for T.A. in his very able submissions reminded me of the various principles set out in the Youth Criminal Justice Act, in particular that I cannot consider general deterrence, that I must impose a sentence that is proportionate, that I should not certainly impose a sentence that is overly harsh in T.A.'s circumstances.
[45] However, given the psychiatric report and conclusions and the failure of T.A. to previously comply with community-based dispositions there appears to be little option for the Court at this stage other than to impose a sentence which will hopefully specifically deter T.A. and contribute to his rehabilitation. He says he has not liked being in jail and has not liked his loss of liberty, so hopefully the sentence I impose will bring home to him that if he does not change his behaviour, if he continues on in this fashion he will be receiving lengthier and lengthier periods of custody.
[46] The Crown has suggested a sentence which will total two years. There would be a three-year maximum available to the Court, and I must say but for the Crown's position I was considering what the maximum sentence I could impose for T.A. would be, but I will temper that because of the Crown's position. If T.A. were to come before me again I would have no hesitation to impose the maximum period of time in custody allowed.
[47] Not only, T.A., do you cause damage to personal property, hotels, restaurants, the property of the people in it, you are tying up precious resources. Having the Fire Department called out to all of these calls is a huge waste of community resources and puts other people whose houses may actually be on fire or who have gas leaks, at risk because the Fire Department will be tied up at a prank call. Nobody has even spoken about that, that you have wasted all of those resources.
[48] Your behaviour is appalling. It is simply appalling, and there is nothing you can now say to anybody that they will believe because of the way you have behaved. You have painted yourself into that corner.
[49] I take it the time served position, Mr. Allingham, is the 45 days?
[50] MR. ALLINGHAM: Yes.
[51] THE COURT: There was nine days credit with New West, so I take it that sort of cancelled out the –
[52] MR. ALLINGHAM: Yes. Yes, correct, Your Honour.
[53] THE COURT: Yes, okay.
[54] MR. ALLINGHAM: Thank you.
[55] THE COURT: All right. So the credit -- I will grant you credit for time served of 45 days. I am going to impose a four-month custodial sentence. That will be served in a closed custody setting.
[56] Following that there will be two months of supervision. I am then placing you on probation for a period of 20 months.
[57] MR. RUTTAN: Sorry, Your Honour. It should be 18, I believe.
[58] THE COURT: Is 18 the –
[59] MR. RUTTAN: If the -- four months and two months is six, so if -- if you're aiming for a two-year sentence, 18 months.
[60] THE COURT: Okay, thank you, 18 months. You are to report immediately upon your release from custody to a Youth Court worker at 301-224 West Esplanade, North Vancouver, British Columbia, and report thereafter as and when directed by the Youth Court worker.
[61] You are to reside as directed by the Youth Court worker and do not change that residence without the prior written permission of the Youth Court worker.
[62] I don't think he should be going to any of these businesses that he has targeted so I'll just go through these. He's not to attend to the North Vancouver Hotel; not to attend to any Sandman Hotel; he's not to attend to any McDonald's restaurant; not to attend to any A & W restaurant; not to attend to any Denny's restaurant; he's not to attend to any Pantry restaurant; he's not to attend to the Mumbai Masala restaurant; he's not to attend to the Hurricane Grill; not to attend to the District restaurant; he's not to attend to any White Spot; and he's not to attend to any Brown's Social House; he's not to attend to any Nando's restaurant.
[63] He is to have -- and who is the young person -- sorry. You are to have no contact direct or indirect -- sorry, it's the mum and daughter in Surrey.
[64] MR. RUTTAN: C.B., and her daughter I., I.B.
[65] THE COURT: All right. You are to have no contact direct or indirect with C.B. or I.B. You are not to attend to any residence at which you know C.B. or I.B. to reside, and you are not to attend to any place of employment or school in which you know C.B. or I.B. to work or attend.
[66] You will attend for, accept and complete any counselling or programming as is directed by your Youth Court worker and complete such programming to the satisfaction of the Youth Court worker.
[67] The residential term will be you are to reside as directed and abide by the rules of that residence and not change your residence without the written permission of your Youth Court worker.
[68] You will attend school daily to the satisfaction of your Youth Court worker and/or maintain employment. You will participate in an intensive support and supervision program as directed by your youth worker. You will participate and cooperate with the Youth Forensic Psychiatric Services.
[69] You are subject to house arrest. You are not to be outside your place of residence except with the prior written permission of your youth worker. You will present yourself at the door of your residence if requested to do so by a peace officer or curfew monitoring program.
[70] You must carry a copy of your order and present it to any peace officer on demand.
[71] They have a no weapons. Is that something that the Crown is seeking?
[72] MR. RUTTAN: No thank you, Your Honour.
[73] THE COURT: Okay.
[74] MR. RUTTAN: Nor no knives.
[75] THE COURT: Right. You are to abstain absolutely from the possession or consumption of alcohol and/or any drugs or substances scheduled in the Controlled Drugs and Substances Act, save and except according to a medical prescription, and then only according to the dosage prescribed.
[76] You are not to use any computer except at your place of schooling. You are not to access the Internet absolutely. So if you bank online you're going to have to start going to the bank. You can't buy anything online. You can't Skype. You can do nothing whatsoever that involves the Internet. Is that clear to you?
[77] THE ACCUSED: Yes, Your Honour.
[78] THE COURT: You are not to possess any cellular phone devices or mobile communication devices. You shall attend and participate in any full-time attendance program if and as directed by your youth worker. You will participate in the restorative youth justice conference program under the direction of and to the satisfaction of your youth worker and the conference facilitator.
[79] All right. And that is concurrent on each count on Information 5121-C-2 and concurrent on each count on Information 184 -- sorry, North Vancouver file 5165-1, concurrent on each count, and that sentence is concurrent to the sentence imposed on 5121-C-2.
[80] Now, have I -- any details or any other things we should be attending to?
[81] MR. RUTTAN: Does Your Honour wish the 18-month order to be a probation order or an intensive support and supervision order?
[82] THE COURT: I thought it was probation and it was intensive -- that they then participated in intensive supervision.
[83] I think it's a program that's available, and Your Honour has directed that that be a term.
[84] THE COURT: Yes. It is probation and he is to comply with ISSP also.
[85] MR. RUTTAN: Very well. I think that the -- I think the order can be intensive support and supervision, which normally it would open the door to a one-to-one worker and more intensive supervision.
[86] THE COURT: Oh, so rather than probation you would prefer it is an ISSP?
[87] MR. RUTTAN: Yes.
[88] MR. ALLINGHAM: I have no submission, Your Honour.
[89] THE COURT: Okay, all right. So instead of a probation order it is an ISSP order for a period of 18 months, and I will include the term that he is to comply with all of the ISSP rules and otherwise.
[90] MR. ALLINGHAM: Your Honour, if I might have one moment.
(DISCUSSION)
[91] MR. ALLINGHAM: Just explained a curfew means that T.A. is inside his residence, or where he's residing.
[92] THE COURT: Yes. It may not be with you, sir. It may be in another program, but his youth worker has the discretion to allow him to be out to go to school, to attend a program. I'm just not specifying what that is. If you have any difficulties, if you think they're denying him appropriate release or you have something that you want him to do that they're not agreeing to, your option is to come to Court and ask me if he can go out and do it, and I can change that order.
[93] If he behaves himself as well it's a long period of time. If he pulls up his socks, if he starts to behave more socially, prosocially, then also that term can be relaxed over time.
[94] This is not something that is going to happen any time soon for you, sir. I wouldn't even consider making any changes to that order for at least six months, so don't be coming back to Court after three months asking me to relieve you from your curfew.
[95] MR. ALLINGHAM: Thank you, Your Honour.
[96] MR. RUTTAN: Crown directs a stay of proceedings on the remaining counts on the record.
(REASONS CONCLUDED)
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