OPINION: “He was impecunious at the time of the offence and was then relying on ‘social assistance and the food bank.’”
“Regrettably, Willoughby Perry Lott Drake is a 58-year-old prolific offender,” and so begins a B.C. Court of Appeal ruling that reads like a tale from the Great Depression.
Drake, who has a Grade 8 or 9 education, has a traumatic brain injury and, by all accounts, the province’s highest court said he has been considered a “slow learner” most of his life.
Over the years, he had the odd job on a fishing boat or construction site.
But Drake never had much luck — he broke his foot in a ladder accident in April 2017 and it was repaired with pins.
Drake’s criminal record includes 137 convictions, 83 for property offences, with numerous jail sentences over the years ranging from three to 12 months.
He has successfully overcome a drug addiction but he continues to battle alcohol addiction, although he was not drunk when his latest run-in with the courts occurred.
“He was impecunious at the time of the offence and was then relying on ‘social assistance and the food bank,’” the court said.
On Nov. 19 in Provincial Court in Courtney, Drake pleaded guilty to:
• On Jan. 9, 2018, he shoplifted meat, cheese and vitamins — $131 worth — from the local Thrifty’s;
• On March 19, he was back pocketing $75-worth of meat;
• On June 17, it was two extension cords worth $218 from the Canadian Tire;
• And on Sept. 12, it was cheese, meat and a backpack from the Wal-Mart in Campbell River.
Drake was sentenced to 22-months. He appealed saying it was disproportionate to his previous stints of incarceration.
He argued the judge (who was not identified) failed to consider rehabilitative factors, failed to apply the totality principle, failed to ask him to say anything before sentencing, miscalculated the credit for time served and imposed an excessive three-years’ probation.
In spite of their salutary-sounding opening, the conservative-law-and-order-minded division — Chief Justice Robert Bauman, Justice Mary Newbury and Justice Gregory Fitch — had little sympathy.
“Ironically, this court’s view of Mr. Drake’s potential for rehabilitation in 2007, unfortunately, has been borne out in subsequent years and gives strong support for the judge’s conclusion here in late 2018,” the unanimous panel said.
After being arrested on the first theft, it noted, Drake was granted interim release and committed the other three offences.
Drake pleaded that he had tried to turn his life around but his spotty attendance with Vancouver Island Addiction Services a few years ago didn’t impress the trial judge:
“In my view, this evidence, generated while Mr. Drake was either on bail or in jail, with four more outstanding charges hanging over his head, in combination with his criminal record, suggests, (sic) that these attempts are far too little far too late to establish a change in attitude. I also note that Mr. Drake’s poor attitude continued well after Sept. 2015, as evidenced by all the continued offending after that date. By my count, there have been 16 more substantive offences that he was convicted of and three to four breaches after this earlier 2015 report was prepared. During this period, Drake had numerous opportunities, either while in jail or through probation orders, to seek treatment, and he has not done so.”
The appeal court agreed and said the judge did not misunderstand or misapply the “step-up” principle.
“It applies generally where an offender’s rehabilitation is a significant factor,” the three justices said. “Here it is not; on the contrary, as the judge concluded, denunciation, deterrence and the need to separate this offender from society are the more significant factors in this case.”
It added that a total sentence of 22 months for four charges of theft was equal to or lower on a per charge basis than some of the sentences previously imposed on Drake.
In 2007, the court previously upheld a one-year sentence on him for two similar charges of theft under $5,000. In that case, now retired appeal Justice Kenneth Smith said: “In light of the appellant’s lengthy related criminal record, I think the sentencing judge was correct to emphasize the protection of the public over rehabilitation in the circumstances of this case.”
As well, the high bench pointed out, it has regularly affirmed jail terms of six months to one year for prolific offenders of theft under $5,000.
The division said the sentence was not a step-up from Drake’s previous convictions and the provincial court judge considered the relevance of rehabilitation and the totality principle.
It also decided there was no reason to interfere with the probationary period imposed.
Although the judge erred in failing to ask Drake if he had anything to say, the error was inadvertent in the eyes of the division.
He also made a mistake crediting Drake with only 99 days for time served (for a net sentence of 19 months) — so the high bench ordered Drake credited with 114 days.
Still, he needed to be jailed to protect the public?
Really? A brain-damaged, elderly indigent man with a drinking problem who can’t find work and regularly gets caught stealing food?
Let’s not kid ourselves — expensive jails have become a substitute for a proper social safety net.