ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-10425
DATE: 2012-07-31

B E T W E E N:

HER MAJESTY THE QUEEN

Matthew Geigen-Miller , for the Crown

Applicant

and -

MYLES GREGORY FAWCETT

Paolo Giancaterino , for the Respondent

Respondent

SENTENCING SUBMISSIONS HEARD: July 5, 2012 at Ottawa, Ontario

Madam Justice B. R. Warkentin

Reasons on Sentence

[1] On March 8, 2012 Myles Fawcett was convicted by a jury of three counts of robbery contrary to the Criminal Code of Canada . The conviction relates to a series of three bank robberies in the Ottawa area, one each on the 15 th , 21 st and 26 th of January 2010.

[2] Mr. Fawcett committed the three robberies in a similar fashion. He entered the bank wearing a large coat, hat and gloves, handed a note to a teller that demanded money and then, when provided with cash, left the bank. There was no evidence to suggest a weapon was used in the commission of these offences.

[3] In the third robbery, the teller had inserted a dye pack with the stolen funds which exploded shortly after Mr. Fawcett left the bank. Mr. Fawcett then discarded his hat and coat, both of which were recovered by the police and contained samples of his DNA. The video surveillance in the three banks showed that the same person committed the three robberies.

[4] Myles Fawcett was arrested on April 16, 2010. At that time he was serving a conditional sentence for the robbery of a pharmacy that he committed in June 2009 and to which he pled guilty in February 2010 (after the commission of the bank robberies but before his arrest).

[5] On May 20, 2010 Mr. Fawcett was granted a conditional release pending trial to an organization called Harvest House. Mr. Fawcett was required to remain in Harvest House unless an absence was authorized and he was escorted during the absence. This condition was amended in September 2011 to permit Mr. Fawcett unescorted absences from Harvest House with written permission. Mr. Fawcett remained in Harvest House until I revoked his conditional release on March 8, 2012.

Circumstances of Mr. Fawcett

[6] Myles Fawcett is currently 24 years old. When he was arrested on April 16, 2010 he was addicted to crack cocaine and narcotic pain medication such as oxycodone. Mr. Fawcett grew up in an environment where his father, Jeffrey Fawcett physically and emotionally abused him. It was his father who introduced and supplied Myles Fawcett first to narcotics and later to non-prescription drugs, in particular to crack cocaine.

[7] On May 31, 2008 Myles Fawcett was arrested but not charged in relation to a series of bank robberies committed by his father, Jeffery Fawcett. Myles Fawcett elected to become a Crown witness against his father in those robberies and detailed the techniques used by his father. Myles Fawcett used some of those same methods in the robberies he later committed in January 2010. Jeffrey Fawcett was later convicted and is serving a penitentiary sentence. Jeffrey Fawcett's abuse of Myles Fawcett; the fact that he was the initiator of Myles Fawcett's drug addiction and the person who taught Myles Fawcett how to rob banks were aggravating factors in Jeffrey Fawcett's sentencing.

[8] A pre-sentence report was prepared and described in some detail Myles Fawcett's history of drug abuse and his dysfunctional and abusive relationship with his father. More importantly, the report described the changes in Mr. Fawcett since his conditional release in May 2010 to Harvest House.

[9] When Mr. Fawcett first arrived at Harvest House he was described by Mr. Gary Wand, the program director as a person with a troubled past, a convoluted story and a substance abuse dependency. Mr. Fawcett had a grade 10 education with little or no work experience. Mr. Wand then described Mr. Fawcett's determination to change his life, starting with taking charge of his drug addiction. Mr. Wand confirmed that Mr. Fawcett has remained clean and sober since May 2010. This was supported by random, surprise drug testing.

[10] Some of Mr. Fawcett's achievements since May 2010 are as follows:

b) Mr. Fawcett was productive, worked toward his goals and developed trusting relationships with staff and peers. In spite of Mr Fawcett's limited work experience prior to entering Harvest House, he contributed 944 hours of shift work at Harvest House which entailed working in a variety of positions. The staff reported that Mr. Fawcett was always willing to learn, had good work ethic and accepted and responded well to constructive criticism.

c) Mr. Fawcett performed 96 hours of community service for which he volunteered, including speaking in different high schools as part of a drug prevention and education initiative, the Army Run, physical labour for seniors and fundraising for the Harvest House program.

d) By August 2011 Mr. Fawcett's physical condition had improved and he began participating in the Harvest House running program.

e) Mr. Fawcett attended classes and successfully completed all but one of the exams in order to obtain his General Education Diploma (GED). His teacher expects he will pass this the next time he is able to take the exam. His teacher described him as a prompt, punctual, motivated and polite student who was always ready to work. She indicated that he initially had no self-confidence in his ability to learn, but over time that changed and he had begun to realize he could be as good as others. She indicated that Mr. Fawcett never missed classes, even though he was often working night shifts and would have to attend class in the morning prior to going to sleep. She described him as the type of student that teachers want in their classroom.

f) Mr. Fawcett has prepared a relapse prevention plan by identifying triggers and negative thoughts and feelings. He has developed positive coping strategies that he has applied during the period he has been incarcerated since the guilty verdicts. These include contacting Harvest House daily to obtain support and remain connected to the community.

g) Mr. Fawcett expressed remorse and shame and also realized the seriousness of his offences. He told the writer of the pre- sentence report that he felt horrible for his conduct and the impact it has had on others, particularly the victims of his offences. The author of the pre-sentence report stated that Mr. Fawcett did not try to minimize his conduct. He confirmed that Mr. Fawcett is prepared to accept whatever sentence or conditions are imposed upon him.

Evidence of Reverend William Main

[11] The founder of Harvest House, Reverend William Main, testified at the sentencing hearing. Reverend Main described himself as a recovering alcoholic and drug addict who has been sober for 40 years. Approximately 32 years ago he founded Harvest House for the purpose of assisting other addicts, including those entering or leaving the prison system.

[12] In describing Harvest House, Reverend Main noted that it is a Christian based organization (although they accept individuals from all faiths), supported solely by charitable donations. Harvest House is physically located outside of the City of Ottawa to make it more difficult for recovering addicts to return to areas that are problematic for them. Reverend Main confirmed that their program is well known to police and the courts and that they work closely with both to ensure that those residents on conditions imposed by the court follow those conditions.

[13] Reverend Main testified that they contact the police when they encounter persons in their custody who breach their bail or probation conditions. Similarly, they will not permit individuals who do not accept their rules and values to remain in the program. It is as a result of this arrangement that they are able to provide space for those who are on conditional release without the requirement for posting monetary bond and why they are a good place for those on parole or probation who have a desire to change. Additionally, their facilities are secure so that their residents in the secure phase of the program cannot leave without authorization.

[14] At Harvest House they provide programs for addiction and actively assist with the educational needs of residents. They also work with their residents to provide them with employment skills and work towards rehabilitation while providing a loving and supportive community for those purposes. They insist that those who wish to remain residents at Harvest House practice honesty and live by that conduct. They hold individuals accountable for their conduct regardless of their past histories, however dysfunctional, and do not permit them to look at past abuses as an excuse for criminal or dishonest conduct.

[15] Reverend Main made it clear that they believe that those guilty of criminal conduct should pay for their crimes, but they also believe that this price can be mitigated by change in an individual. He recounted numerous examples of the benefits of change in those who are willing to embrace this philosophy and take ownership of their lives.

[16] It was a recurring theme from Reverend Main's evidence that at Harvest House they live by the philosophy that everyone should be held accountable for one's conduct; everyone should be forgiven; and that everyone deserves another chance.

[17] Specifically with respect to Myles Fawcett, Reverend Main confirmed that they have a good relationship with him and have confidence in his ability to succeed in his recovery from addiction and his rehabilitation to a productive member of society.

[18] Reverend Main had encouraged Mr. Fawcett to plead guilty at an early stage and for reasons on which he could not elaborate; Mr. Fawcett chose not to take that step. Reverend Main was clearly disappointed that Mr. Fawcett put the justice system to the time and expense of a trial when he was guilty of the crimes for which he had been charged. His failure to acknowledge guilt publicly by pleading guilty was something that was of concern to the board at Harvest House; so much so that the board considered whether or not to permit Mr. Fawcett to remain in their program. In the end they determined that the progress Mr. Fawcett was making outweighed his failure to plead guilty. Additionally they did not want to undermine the legal advice he was receiving.

[19] Reverend Main acknowledged that notwithstanding the progress Mr. Fawcett has made to date, recovery from addiction is a growth process with many challenges. He confirmed that they will continue to support Mr. Fawcett regardless of the sentence he receives and will start working with him and with the correctional system immediately to assist him with his release planning and will support him while incarcerated. They will keep him in their program for whatever length the Court imposes and then as long as Mr. Fawcett chooses to stay with them.

[20] It was Reverend Main's opinion that Mr. Fawcett is still in the early stages of his development as a recovering addict and that the world still presents many risks for him; that for Mr. Fawcett, this particularly includes the world inside the prison system. It was his opinion that time in prison would present a high risk of relapse for Mr. Fawcett because he is the type of person who needs to fit in. He described Mr. Fawcett as someone who seeks approval and so responds to others by becoming like them, good or bad. They have been assisting Mr. Fawcett to be aware of this need, the triggers that cause it and how to resist bad influences.

[21] Reverend Main was of the belief that Mr. Fawcett is at a vulnerable stage of his recovery and that incarceration, particularly if on a long sentence, would be a bad place for him and would be detrimental to his future. He was concerned that Harvest House would not get him back soon enough to prevent his relapse and he would return to negative behaviours, particularly drug use and crime.

[22] Reverend Main testified that Mr. Fawcett's father Jeffrey Fawcett has asked that if Myles Fawcett is given a penitentiary sentence that he be placed in the same prison. Jeffrey Fawcett has apparently told Myles Fawcett that he would be in a position to protect him from the dangers inside the penitentiary. Reverend Main was particularly concerned about the destructive effect that would have on all of the progress that Myles Fawcett has made.

Mitigating Factors

[23] Many of the mitigating factors relating to Mr. Fawcett's progress in his recovery from addiction and his remorse for his criminal conduct have already been mentioned so I will not restate them here. In brief Mr. Fawcett:

a) Has much support from individuals in his community, particularly those at Harvest House.

b) Has demonstrated an ability to leave behind his past criminal conduct, drug addiction and has a desire to give back to the community.

c) If he returns to Harvest House after his custodial sentence, he has good prospects for rehabilitation and of becoming a productive member of society.

d) He fully complied with and exceeded the terms of the conditional interim release.

e) After his conviction, he showed remorse and has now taken responsibility for his crimes.

[24] It was agreed by counsel that Mr. Fawcett's youth and the fact that it was his father, Jeffrey Fawcett who introduced him to narcotics and taught him to rob banks should be taken into consideration. As previously noted, these were considered aggravating factors in Jeffrey Fawcett's sentencing.

[25] Counsel for the Defence argued that the manner in which the bank robberies were conducted should be considered a mitigating factor in that they were not the result of significant advance planning and did not include the use of a weapon. He submitted that this is relevant when comparing sentences in other bank robbery cases, many of which included significant sophistication, advance planning and the use of weapons.

Aggravating Factors

[26] Counsel for the Crown agreed that this case presented an unusual and difficult situation for determining a fit sentence. However, he noted that there were numerous aggravating factors to suggest that a longer period of incarceration is warranted.

[27] With respect to the planning of the bank robberies, Counsel for the Crown agreed that while these robberies did not entail the highest degree of sophistication, the fact that Mr. Fawcett attempted to conceal his appearance, demanded the return of the robbery note and engaged in other types of counter surveillance methods, such as demanding that there be no "ink" or dye packs included with the stolen funds; that he wore baggy clothes and then disposed of those clothes after the robbery and that Mr. Fawcett prepared a separate note before each robbery, demonstrated an element of some planning and deliberation.

[28] The other aggravating factors as set out by the Crown included:

a) That Mr. Fawcett was bound by both a recognizance and probation order at time of the robberies.

b) He was on bail for a similar offence, the robbery of a pharmacy of narcotics with a note that threatened violence at the time he committed these robberies.

c) Robbery is a serious crime. The Criminal Code provides for a punishment of a maximum of life imprisonment with no minimum sentence and there is no eligibility for a conditional sentence.

Positions of the Defence and Crown

[29] The Defence position is that Mr. Fawcett should receive the maximum credit available to him for any pre-sentence custody and then serve a sentence somewhat less than 2 years to be followed by 3 years' probation to be served at Harvest House.

[30] Crown and Defence agreed that to July 5, 2012, the date of sentencing submissions, Mr. Fawcett had served 156 days of pre-sentence custody. Adding to that another 27 days to today, July 31, 2012, Mr. Fawcett has served 183 days of pre-sentence custody (or 6 months).

[31] Crown and Defence also agreed that the period of time Mr. Fawcett spent while on conditional release at Harvest House between May 21, 2010 and September 2011 should be considered in the same fashion as house arrest, which typically receives credit on the basis of 25% of the time served. Counsel for the Defence argued that the period while at Harvest House between September 2011 and March 8, 2012 when his bail was revoked should also qualify on the same terms as house arrest notwithstanding a change that loosened the conditional release provisions in September 2011. This would equate to another 4 or 5 months of pre-sentence custody.

[32] It was the position of counsel for the Defence that Mr. Fawcett is still entitled to receive credit for pre-sentence custody on the basis of 2 days for each day of pre-sentence custody because the robberies were committed prior to the coming into force of the Truth in Sentencing Act . The recent Alberta Court of Appeal Case of R. v. Serdyuk [1] supports this proposition and suggests that failure to do so is a legal error. Providing the maximum calculation to that equation, Mr. Fawcett would receive credit equivalent to 22 months custody.

[33] It was the position of the Defence that by sentencing Mr. Fawcett to a shorter period of incarceration followed by a longer period of probation, the maximum of 3 years, would assist Mr. Fawcett in continuing his recovery and with his eventual re-entry into the community.

[34] Counsel for the Defence argued that Mr. Fawcett has already demonstrated that he will abide by conditions of his release and so there is minimal risk to the community of imposing such a sentence. In contrast, the risk of a penitentiary sentence is high because there is less likelihood that Mr. Fawcett will have the same opportunity or inclination to return to Harvest House once he is released from a longer sentence.

[35] The Crown position is that an appropriate sentence would be 2 years each for the three bank robberies. He submitted that in light of Mr. Fawcett's prior criminal record, particularly the prior robbery in 2009 and when considering the proportionality principle, particularly the fact that the bank robberies were over a short duration, the Crown recommended a penitentiary term of between 4 and 5 years less any credit for which Mr. Fawcett would be entitled in light of his pre-sentence custody.

[36] The Crown argued that credit for pre-sentence custody should be only awarded on a one for one basis due to the enactment of the Truth in Sentencing Act prior to the charges being laid. He claimed that credit for the period of time Mr. Fawcett spent in Harvest House should be limited to May 2010 until September 2011 when the bail conditions were amended, with no credit for the time Mr. Fawcett spent at Harvest House from September 2011 to March 2012. Using the Crown's calculations, the total credit for pre-sentence custody would be approximately 11 months.

[37] Additionally, the Crown was seeking 2 ancillary orders, that of a weapons prohibition and that Mr. Fawcett provide a DNA sample, neither of which were opposed by the Defence.

[38] Crown counsel agreed that the sentence proposed by the Defence would have been a perfect sentence if Mr. Fawcett had pled guilty. He acknowledged that it would not have been difficult for the Crown to have both advocated for and agreed to such a sentence at that time.

[39] Counsel for the Crown made it clear that he was not suggesting that because Mr. Fawcett chose to proceed to trial, this was an aggravating factor. He argued that a guilty plea provides some additional opportunity to craft a sentence that is no longer available after a trial and conviction.

[40] Counsel for the Crown asked the court to consider the fact that in this case both society and the administration of justice were put to the maximum expense possible, that being a lengthy jury trial.

[41] Finally, Crown Counsel argued that the court should not give a lesser sentence than the one he proposed given all the circumstances of this case. He noted that the aggravating factors, particularly Mr. Fawcett's prior criminal record were significant and serious. The fact that Mr. Fawcett has now acknowledged guilt and responsibility, only after guilt was established in a trial should cause the court to be at least partially skeptical of Mr. Fawcett's claim of remorse.

General Principles of Sentencing

[42] The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to contribute to respect for the law and to maintain a just, peaceful and safe society. A court is required to impose a just sanction that has one or more of the following six objectives:

a) To denounce unlawful conduct;

b) To deter the offender and others from committing offences;

c) To separate offenders from society where necessary;

d) To assist in the rehabilitation of offenders;

e) To provide reparations for harm done to victims or to the community; and

f) To promote a sense of responsibility in offenders and acknowledge the harm done to victims and to the community.

[43] In most criminal cases the following factors are taken into consideration in determining what sentence to impose on the offender:

a) the degree of premeditation;

b) the circumstances surrounding the actual commission of the offence. (For example, the amount of violence used, the use of a weapon, the degree of participation of the offender.);

c) the gravity of the crime in regard to which the maximum punishment provided by statute is an indication;

d) the attitude of the offender after the commission of the crime;

e) any prior criminal record of the offender;

f) the age, mode of life, character and personality of the offender;

g) any recommendation contained in a pre-sentence report or any other mitigating circumstances brought to the attention of the Court;

h) incidence of crime in the Court’s jurisdiction; and

i) sentences customarily imposed for the same offence.

[44] The principles set out above are collectively referred to as those of denunciation and deterrence.

[45] There are also principles at play when there are multiple offences as in this case. Recently the Ontario Court of Appeal in the case of R. v. Courtney [2] discussed the totality and proportionality principles when sentencing an offender for multiple offences. The Court confirmed that it "is based upon the fundamental notion that the punishment must fit the crime and that the degree of punishment must reflect the gravity of the offence and the moral blameworthiness of the offender. Otherwise, society will have no confidence in the law or the fairness and rationality of the legal system …"

[46] At paragraph 18 of Courtney , the court outlined the goals in sentencing when combining sentences for multiple offences:

" In short, a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender. The overall length of the custodial period imposed must still relate to and reflect the variety of sentencing goals, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders from society where necessary, and the general imperative of promoting respect for the law and the maintenance of a just, peaceful and safe society: Criminal Code , s. 718. In this regard, the authorities recognize that where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns."

[47] Justice LeBel, in the Supreme Court of Canada's recent decision of R. v. Ipeelee [3] wrote that there are two perspectives to the principle of proportionality; that a sentence should neither be unduly harsh and excessive nor overly lenient or unresponsive to the purposes and principles in the sentencing regime as set out in the Criminal Code. He noted that our system of justice must be seen to be fair and rational both to the offender and to the community and in this manner the integrity of the justice system is preserved.

[48] Justice LeBel concluded that "In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other." When deciding on a just sanction, the Court also acknowledged that sentencing is a highly individualized process and that sentencing judges must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender. [4]

Analysis

[49] The principle of denunciation is an expression of society’s attitude towards the offence committed. It focuses on the conduct rather than the personal characteristics of the offender. In the case of R v. M . (C.A.) , Justice Lamer of the Supreme Court of Canada wrote that, “In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.” [5]

[50] The principle of deterrence seeks to provide a threat or example to the offender (specific deterrence), or to others (general deterrence), in order to discourage crime by making it clear that criminal behaviour of this nature will result in the imposition of severe punishment.

[51] In any given case, there may be one or several sentencing principles at play. Sometimes they conflict with each other. The Court must attempt to balance all relevant sentencing principles with the aggravating and mitigating circumstances and personal background and history particular to each accused.

[52] Any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence must also be similar to those imposed on similar offenders who have committed similar offences.

[53] It is the task of the trial judge to assign the relative weight to the particular aspects of the case so that the sentence is shaped in a way that is specific to the accused while following a uniform approach.

[54] When I examine these principles in the context of Myles Fawcett, I find I am able to craft a sentence where all of these principles coincide and one in which Mr. Fawcett will be provided the opportunity for rehabilitation and recovery.

[55] I accept that the best thing for Myles Fawcett would be to immediately return to Harvest House. Unfortunately, that option is not open to me in light of the denunciation aspect of sentencing. Bank robbery is a serious crime and requires that Mr. Fawcett's conduct be punished for encroaching on our society’s basic code of values. Three bank robberies, notwithstanding they were committed within a short span of each other, coupled with his criminal record for robbery add to the length of sentence I must impose.

[56] The principle of deterrence is more easily addressed. Mr. Fawcett has shown by his conduct since May 2010 that deterrence specific to him is well underway.

[57] It is apparent that Myles Fawcett today is a changed person; someone who has acknowledged his past criminal conduct and who appears to be turning what was a difficult life marred by parental abuse and serious crime in order to support a drug addiction into a productive life where he appears eager to give back to the community in exchange for the wrongs previously invoked on others.

[58] There is little doubt that Myles Fawcett, left without the support network he has gained through Harvest House; the accountability required of him in that environment; and the positive role models of the mature adult men he has encountered would no doubt be at significant risk of returning to his previous lifestyle of substance abuse and crime. There is still work for Mr. Fawcett to do so that he can participate fully as a productive member of our society.

[59] When examining the principle of general deterrence, I have considered two aspects that may be relevant in this case. The first would be to impose a sentence that is sufficiently harsh so as to warn others that if you commit crimes such as these, you will be dealt with severely. The concept being that this will thus discourage others from committing crimes such as these.

[60] I am mindful however of the fact that Myles Fawcett committed his offences, including those prior offences on his record, while he was addicted to prescription narcotics and to crack cocaine. There was little rational thought behind the offences except that he needed either drugs or money to purchase drugs to support his addiction. I query whether or not the concept of general deterrence means much to someone when they are addicted and require a fix.

[61] In cases such as these, it seems that the concept of general deterrence can be accomplished by sending a message that says, "If you commit a serious crime while addicted to drugs you will face severe consequences. However, you will have a choice. You can serve all of your time inside the prison system or, if you are willing to commit to living in such a fashion where you give up drugs, the negative influences in your life, work on your education and employment skills and still sacrifice your liberty while doing so, then you will be given that opportunity within the bounds of a just sentence for the crimes committed."

[62] It would be a powerful message to give offenders that choice. Not all offenders will accept the challenge of walking away from a life of drug addiction and crime. For those such as Myles Fawcett, who desire to change, we must be able to offer some hope to them that does not involve a term of incarceration of such length that it will destroy their ability to follow through with that desire for change.

[63] Mr. Fawcett made it clear that he intends to return to Harvest House upon his release from custody because he does not feel ready to live on his own, regardless of the sentence I impose.

[64] Indeed, at the conclusion of the sentencing submissions, Mr. Fawcett asked to address the court at which time he made an impassioned speech in which he acknowledged his guilt, apologized to the court, to the members of the jury and to the victims of his crimes. He advised the court that he would accept whatever sentence was imposed upon him and would then return to Harvest House and continue to work on his recovery.

[65] I am satisfied that Mr. Fawcett has demonstrated a sincere desire to change his life. Not just because of his words but because of his actions. I also find that a long period of incarceration would likely preclude him from ever achieving that objective. I accept that Mr. Fawcett is still in the early stages of his recovery and at risk of relapsing without the appropriate support. Notwithstanding his desire to change, Mr. Fawcett has not yet developed the necessary life skills to succeed on his own, particularly with a long prison sentence.

[66] When determining the sentence, I reviewed the case law that was provided by counsel for Mr. Fawcett and for the Crown. I note that the range of sentence that they each recommended does not significantly differ; but rather it is the manner in which the sentence should be imposed where they are at odds.

[67] Both proposed sentences would require Mr. Fawcett be kept in some form of custody for a period of 4 to 5 years. They both agreed that Mr. Fawcett should receive credit for his pre-sentence custody. Both agreed that the crimes Mr. Fawcett committed occurred prior to the coming into force of the Truth in Sentencing Act .

[68] The difference in the two approaches is that the Crown would see Mr. Fawcett incarcerated for the duration of his sentence subject to parole eligibility whereas the Defence proposes that the court uses its discretion to determine the time Mr. Fawcett remain incarcerated and the time he spend on probation in the custody of Harvest House.

[69] Regarding the issue of pre- sentence custody, I agree with the interpretation set out by the Alberta Court of Appeal in R. v. Serdyuk [6] that offences committed prior to the coming into force of the Truth in Sentencing Act are still entitled to credit on a 2 for one basis for pre-sentence custody.

[70] I also accept that the entire period that Mr. Fawcett was at Harvest House is eligible for credit as pre-sentence custody. The fact that his conditions were changed to become more lenient does nothing to detract from that. In fact, the conditions imposed upon Mr. Fawcett by the nature of the rules required of residents at Harvest House and the secure setting were substantially more onerous than even the most stringent conditions the court could have imposed on regular house arrest. There may even be grounds to provide credit for pre-sentence custody that is greater than the 25% that was agreed upon by counsel.

[71] If I have a criticism of the Crown's submissions on this issue, it is that it appeared that the Crown took the fact that Mr. Fawcett both thrived at Harvest House and was able to abide by all of the conditions imposed upon him as evidence that they were not stringent enough. This is neither accurate, nor the test. Mr. Fawcett is to be commended for what he accomplished in the span of less than two years and should be entitled to whatever credit he is entitled to for that period of time.

[72] I find therefore that Mr. Fawcett is entitled to credit of 22 months of pre-sentence custody.

[73] Given that both the Crown and Defence agreed that an appropriate sentence is between 4 and 5 years less his entitlement to pre-sentence custody; after applying 22 months of credit, Mr. Fawcett should face an additional sentence of between 2 and 3 years.

[74] I find that the proper application of the principles of denunciation, deterrence and proportionality in this situation will be met with a custodial sentence of one year followed by three years of probation to be served at Harvest House with the usual statutory conditions and such other conditions as Mr. Fawcett's probation officer and the directors of Harvest House agree are appropriate.

[75] A sentence of this nature, while differing in substance, is somewhat longer than the Crown was seeking; however, I find that Mr. Fawcett is in need of the support and resources that are available at Harvest House. His best opportunity for rehabilitation to become a fully functioning and contributing member of society will only be met by imposing the longest possible probationary period permitted by law, that being three years.

[76] Even if I am incorrect regarding the interpretation of the application of the changes to credit for pre-sentence custody, I would still impose the same sentence having regard to the onerous conditions imposed upon Mr. Fawcett during his time at Harvest House and that will again be imposed during his probationary period as well as the success he achieved while there. I do not find that a longer period of incarceration would satisfy the interaction of all of the principles of sentencing on the facts of this particular case.

[77] In addition to the sentence I impose an order pursuant to s. 109 of the Criminal Code for a firearms prohibition for a period of 10 years and an order requiring Mr. Fawcett to provide for the purpose of DNA analysis, samples of one or more bodily substances that are reasonably required for that purpose.

Madam Justice B. R. Warkentin

Released: July 31, 2012

[1] 2012 CarswellAlta 1111, 2012 ABCA 205 , paras 49-57 .

[2] [2012] O.J. No. 3087, 2012 ONCA 478 para 15 and 18 , per Laskin J, Cronk J. and Hoy JJ.A.

[3] 2012 SCC 13 , [2012] S.C.J. No 13 , para Per LeBel J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Fish and Abella JJ. concurring)

[4] Supra at para 38

[5] [1996] 1 S.C.R. 500 at para. 81 .

[6] Supra, note 1