Cite as: R. v. Hurlburt, 1993 NSCO 13
1992
C. Y. 6738
IN THE
COUNTY COURT OF DISTRICT NUMBER THREE
HER MAJESTY THE QUEEN
Informant
-
versus
ROSS ANTHONY HURLBURT
Defendant
BEFORE:
The Honourable Judge Charles E. Haliburton,
J.C.C.
CHARGE:
Section 348 (l)(a) of the Criminal Code.
SENTENCE:
January 22nd, 1993.
COUNSEL:
Robert M.J. Prince, Esq., Crown Attorney
Dell C. Wickens, Esq., Defence Attorney
SEN TEN C I
N G
1.
HALIBURTON, J.C.C.
This is the sentencing of two men,
Williams
and Mr. Ross Anthony Hurlburt who are co-accused in
relation to an offence of break, enter and theft contrary to
Section
348
(1) (a)
of
the
Criminal
which were that they did break and enter a certain place, to
wit:
Dayton
Foodmaster
at
Dayton,
intent to commit the indictable offence of theft therein.
There are Pre-Sentence Reports before the Court with
respect
to
each
of
these
men
Counsel
and their own
comments with respect to the manner in
which the Court might appropriately deal with sentencing.
Break
and entry is obviously
carries with it a substantial period of incarceration in the
appropriate
circumstances.
In
which is charged under these Sections, could and very often
does,
perhaps
most
often
does,
incarceration
in
the
Federal
means the sentence is greater than two years.
The
circumstances
of this
1 it tIe review
in that it was
an unsuccessful attempt on the
part
of
these
two
men
to
commit
theft.
As
Mr.
Wickens,
representing
pointed out, at the conclusion
Mr. Shannon Eugene
Code,
the specifics of
Yarmouth
County
with
and
I
have
the
comments
of
a
serious offence.
It
the
normal
course
an
event
carry
with
it
a
term
of
Institution
which
obviously
offence perhaps require
a
the
intended offence
of
Mr.
Hurlburt,
has
of the trial in the matter,
I
2.
was satisfied that there had,
in fact, been some penetration
of the building in some
form or other.
no evidence that either of these men had actually entered the
building physically themselves.
there
was
an
alarm
that
was
pushed ajar.
Whether
one
of the bodies actually went into
the building after it was pushed ajar or whether it didn It,
was not essential to a finding of guilt.
So it is in that sense akin to an attempted break and
enter.
Certainly,
if the intent,
theft, it
was
only an at tempt
that,
one
must
observe
that
removed from the accomplished fact.
is that the extent of loss or the extent of injury to the
victim
is
varied
on
that
account.
serious matter and merchants or others in the area who may be
threatened with
such
break
and
same fears as if the whole object of the exercise had been
successful.
As
Crown Counsel has outlined,
the
Zong case,
where three years for breaking and entering.
In that
case,
however,
as
he
lengthy record
on
the part of
were
for similar
offences
and Mr.
There was,
however,
What
had happened was that
triggered
when
the
door
was
as presumed,
was
one of
in that sense.
Having said
an
attempt
is
not
very
far
The only real difference
It continues
to
be
a
enters
must still have the
a
threshold was set in
has
recognized,
there
was
a
Mr.
Zong,
many
of
which
Zong,
in fact, had spent
3.
many
years
in
jail
as
a
result
committed.
These
men are both young.
in January
of
1991.
Two
years
offences
were
committed
and
we
consider the activities of each of them since that incident.
On
the
one
hand,
Mr.
chose
to
go to Ontario where
he obtained employment with a
roofer
and
renovator, or contractor.
roofing firm
and according to the Probation Officer who
written the Pre-Sentence Report, he received glowing comments
from his employer who at this time continues to hold open or
continues
to
have
a
job.
The
Hurlburt
upon
his
return
there.
posi ti ve
factor
and
one
which
determining what to do with him.
On
the otehr hand,
Mr. Williams...
just
finish
with
Mr.
Hurlburt
Counsel
has pointed out,
a
negative side to Mr.
situation and that is that he had in May of 1989 and in July
of 1990 been convicted of offences exactly the same as this
offence for which
he
had
received
suspended
sentence
and
was
ordered
$800.00 and in the second instance had received a sentence of
of
the
offences that
he
The offence was committed
have
now
passed since the
have
had
an opportunity to
Hurlburt,
after the
offence,
The firm is called a
has
job is held
open
for
Mr.
That certainly is a
very
I
must
take
into account in
Perhaps
I
should
because
there
is,
as
one
Hurlburt's
on
the first instance,
a
to
make
restitution of
4.
90 days to be served intermittently.
Those sentences were
very
modest
in
terms of what
the Crown has cited to be the
normal penalty for breaking and entering.
I suppose I might
conjecture
that
the
Judge
dealing
with
those
matters
considered the particular offences weren r t
all that serious
or that Mr. Hurlburt was for some reason salvagable.
Mr.
Williams,
on the other hand, before this incident
had
a
record which consisted of four convictions
under the
Narcotic Control Act,
simple possession,
possession for the
purpose
and trafficking, all of which
had occurred in
'87,
'88
and
'89.
After this incident, starting in July of '92,
he
ran into substantial problems abiding by the
law in his
driving habits and drinking habits.
After this incident, he
has recorded three convictions under the Breathalyzer section
of
the
Criminal
Code
and
two
for driving while prohibited
under the Criminal Code.
He is presently serving a sentence
of
one
year
in
relation
to
three
of
the
offences
and
I
presume
leaves
unpaid
fines
in
excess
of
$3,000.00
with
respect to some of the others.
In any case, there were fines
imposed in excess of $3,000.00.
Those subsequent convictions and his refusal to abide
by
the
law
in
terms
of
drinking
and driving is a
serious
concern with respect to Mr. Williams' attitude which has been
referred to by his own
Counsel
this morning with respect to
5.
whether or
not
he
may
have
a
job when
he is finished with
this process.
I
have observed Mr.
Williams carefully while
he
has
been
in
Court.
I
have
observed
him
today.
I
considered what the Probation Officer has to say with respect
to his attitude.
I
accept that
he accurately assessed Mr.
Wi 11 iams I
behaviour
and personal i ty traits when
he observed
that the offender displayed
a
"negative attitude toward the
judicial system".
My
hunch is that Mr.
Williams displays a
negative attitude
towards all authority
and
that gives
me
some concern in sentencing Mr. Williams.
The
sentence
I
intend to impose,
I
hope, will assist
him or assist in convincing him that it is going to be much
easier to comply with the rules and regulations that are laid
down for him and for others.
The laws that we have to comply
with aren't there just to cause problems for him.
They cause
problems for all of us.
To deliberately flout those lawl to
drink
and
drive
in contravention
of
the
law I
and
thereby
create grave danger for other people who are lawfully going
about their business I
is
a
concern to the whole
community I
Mr. Williams.
I
must in imposing sentence take into account not only
the circumstances of the offence itself as well as the needs
of society to be protected from such incidents.
This brings
into play the need for
"general
deterrence". The obligation
6.
I
have to the community is to demonstrate that breaking and
entry is a serious offence and that nobody can expect to walk
away
from
such
a
conviction without suffering some penalty.
I
have
to
temper
that
with
what
I
perceive
to
be
the
possibilities
of
reformation
and
rehabilitation
of
a
particular
accused.
In
that
sense,
I
have
to
take
into
account what I
have been told about the personalities and the
potentials of you two men.
I
have to consider whether or not
what I say or what I
do may persuade you to change your ways.
You have heard the lawyers talking about these two particular
cases
that
Mr.
Wickens
has
cited
and
provided copies.
I
refer to
R.
v.
Schrader and
R.
v.
Bursey.
In
one case it
appears that the Judge was lenient because the fellow who was
before
him
had
really
changed his life around.
There
was
really
hope
that
he wasn't going to see
him back
in Court
again.
In the other case, as I
read it, the fellow who was
before
the
Court
had
real
problems,
including psychiatric
problems and the Judge in that case took a chance on what the
fellow might
be able to
do with the help of a psychiatrist
and with the help of his family.
I
have heard what Counsel have had to say.
I
am
not
able to say which of you was the ring leader in this matter.
I
am
not really able to distinguish, it seems to me,
between
the sentences that I
impose
on one of you or the other.
The
7.
sentences which
I
impose
on each of you
must be reasonably
consistent,
one
with
the
other.
I
take into account your
personal circumstances.
I
take into account that there has
been
a
lot of
water
under
the
bridge since this
incident
occurred.
I suppose I
have to take into account and frankly,
I
do
take into account,
the fact that the sentence that
I
impose
on
Mr.
Williams will not,
in one respect,
have much
effect on how long he remains incarcerated.
Bearing all of these things in mind,
I find that a fit
and
proper sentence,
Mr.
Hurlburt,
in your case,
would be a
period of incarceration of three months, after which you will
be released to go about your business.
You can get back to
Ontario and rejoin your family.
Hopefully with the assurance
that
you
are
going
to
be
free after
no
longer than three
months' your job will be open to you when you get back there.
Your
employer
seems to be favourably impressed with you and
wants you back there.
My recommendation to you would be that
you
work
hard,
as
your
employer says
you
have done;
don I t
miss
any days at work:
make sure
you keep your job because
there are thousands of other people in Canada who would like
to have it: and
I wouldn't be in too big a rush to come back
here were you obviously are known
in the community,
known to
the police and where you are going to be under suspicion all
the time.
You can sit down.
8.
Mr.
Williams, with respect to you,
I, as I
have said,
I
have
a
different
view
of
you.
Maybe
I I m wrong.
The
sentence with respect to you,
likewise, is that you serve a
period of incarceration of three months which will be served
concurrently with the sentence you are presently serving.
In
addition to that,
I
am going to impose a period of probation
of
two years.
You
are going to have to come to terms with
authori ty,
starting with
your
Probation Officer.
You
are
going
to
have
to
follow
the
instructions of the Probation
Officer to the letter.
The
terms of your probation are going to be that you
report
to
the
Drug
Dependency
Centre
at
the
Yarmouth
Hospital: that you have an assessment there of what your drug
or alcohol dependency situation may be: that you continue to
attend
there
for
counselling
as
may
be
recommended
by the
professionals there and as ordered by your Probation Officer,
including an in-house program if that's available to you and
if it's offered
to
you
and
if it I S
considered
necessary,
obviously, by the professionals.
In
view of the obvious record you have for dependency
on
alcohol,
perhaps
the
extent
of
the
convictions
with
respect
to
alcohol
means
you
may
have forgotten about the
illicit drugs for the time being.
I
am going to impose as an
addition term
that
you
refrain
absolutely from the use of
9.
alcohol
and drugs during that period of time.
And I should
advise you that if you are apprehended and if it proves to be
that
you
are impaired by either alcohol or
a
drug or
have
possession of drugs or something like that, then that would
involve
a
separate penalty
on that account,
I
want
you to
understand that, as a breach of probation.
You
and since
I
am preaching or lecturing,
I
suggest
to you that you
have
a
good talk with yourself and perhaps
with your father about your attitude to authority and perhaps
it's news
to
you that people see
you as having an attitude
problem,
I
don't know,
but if you are going to work some day
or if
you
are
going
somewhere
someday
and
you are feel ing
cross
and
you feel like lashing out,
instead of doing what
you are asked to do or smiling at people, then you had better
become an actor and start acting as if you did enjoy life and
as if you did enjoy your job when you are there working.
So
you
will
be
required
to
sign
a
Probation
Order
which will be provided to you in due course and
part of your
sentence is that you sign that Probation Order.
The victim
fine surcharges will be waived.
10.
DATED
at
Yarmouth,
in
Province of Nova Scotia this 22nd day of January, A.D., 1993.
TO:
Mrs. Diane E. Hamilton
Clerk of the County Court
P.O.
Box 188
YARMOUTH,
Nova Scotia
BSA
4B2
the
County
of
Yarmouth
and
CHARLES E.
HALIBURTON
JUDGE
OF THE
COUNTY COURT
OF
DISTRICT NUMBER THREE
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.