LAW 12

8.1c - R. v Widdifield (2015)

INSTRUCTIONS: Use the sentencing decision foundonline to complete the following.

1. What crime(s) was Robert Widdifield found guilty of? [1 mark]

1. According to paragraph [2], what is extortion? [1 mark]

1. What 'organization' was he a member of? [1 mark]

1. List two aggravating factors in the sentencing. [2 marks]

1. What was Widdifield's home and family life like? [2 marks]

1. Would the judge consider the information about his home and family life to be an aggravating, or a mitigating factor? [1 mark]

1. What sentencing terms was the crown seeking? [5 marks]

1. What sentencing terms was the defence seeking? [1 mark]

1. What was the purpose of paragraphs [17] to [33] in this sentencing decision? [1 mark]

1. The judge writes, "...sentencing is an individualised process." What is meant by this? [2 marks]

1. Name three of the sentencing principles specifically mentioned and used in this case. [3 marks]

1. What were the terms of the sentence that Widdifield received? [5 marks]

SOURCE OF INFORMATION:

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	R. v. Widdifield,
	2015 BCSC 643

Date: 20150414

Docket: 74552-1

Registry: Nanaimo

Regina

v.

Rajinder Singh Sandhu Robbie Henry Louis Lajeunesse Jeffrey Andrew Benvin and Robert Frederick Widdifield

Restriction on publication: Pursuant to s. 486.5(1) of the Criminal Code of Canada

Before: The Honourable Mr. Justice Baird

Oral Reasons for Sentence re Accused Widdifield

Counsel Crown:	E. Rennie S. Currie-Roberts, Articled Student
Counsel for Defence:	J.W. Green
Place and Date of Hearing:	Nanaimo, B.C. March 17, 2015
Place and Date of Judgment:	Nanaimo, B.C. April 14, 2015

INTRODUCTION

[1] THE COURT: On December 16, 2014, I found the accused Robert Frederick Widdifield guilty of extortion and theft against J.H., his former friend and business associate. It was admitted at trial that the accused is a senior and influential member of the local chapter of the Hells Angels Motorcycle Club, to which I will refer hereinafter to as the "Club," and it was plainly to be inferred from the evidence that the complainant had a long association with that organization through the accused.

FACTS

[2] My reasons for conviction are digested at 2014 BCSC 2482. These contain a detailed treatment of the facts. In brief terms, I found that Widdifield played the role of instigator and superintendent in a criminal enterprise comprising of himself and three others. The goal of this enterprise was to coerce the complainant by threats, intimidation, and violence into handing over money and property to which they had no right or lawful claim, including a 37-foot Bayliner yacht called Dream Chaser.

[3] I found, in particular, that these offences were committed at Widdifield's direction in his capacity as a senior, respected, and feared member of the Club. His emissary was a more junior Club member, Rajinder Sandhu. His instructions were to intimidate the complainant, administer beatings if necessary, and exact payment of a debt owed by J.H. to a person named Crooks. Sandhu was also directed to collect a "stupid tax" on behalf of the Club for J.H.'s alleged unauthorized use of the Club's name and reputation in dissuading Crooks from pursuing payment of her money.

[4] Sandhu's strong-arm tactics resulted in J.H. signing the yacht Dream Chaser over to him. Sandhu then sold the vessel to a person named Nathan Churchill in August 2010. I found that Widdifield supervised this transaction. On the day the sale closed, he and Sandhu left the vessel together with a bag containing $80,000 in $20 bills. Things quietened down for a while after this. The complainant thought the matter was concluded, and Sandhu assured him that it was. But things flared up again in the autumn of 2010.

[5] I found that Widdifield and Sandhu were joined in their efforts to extort J.H. by Robbie Lajeunesse and Andrew Benvin, leading to a final incident at Widdifield's residential property on October 27, 2010, that confirmed to me beyond a reasonable doubt that Widdifield was not only a member of the common criminal enterprise alleged but a driving force behind it. The circumstances surrounding the same-day arrest of Lajeunesse and Benvin showed that far greater harm may well have been planned for J.H. in order to force compliance with a demand for payment of an additional $160,000.

[6] In summary, this case involved a protracted, repetitive, and aggressive extortion involving the actual loss of a valuable asset. Physical violence was used, and if not for the intervention of the police, J.H. may well have been subjected to further mischief and mayhem of a pronounced and alarming sort.

[7] There are a number of aggravating features to be considered. This was a common enterprise crime in which Widdifield's reputation and that of the Club were used to compel the ready capitulation of the complainant to unlawful demands. All participants were aware that the complainant was easy pickings because of his relationship with Widdifield and what they assumed would be his reluctance to resort to police protection. They actually succeeded, as I have already said, in extorting a valuable piece of property from the complainant. It was a "pure" extortion in the sense that the accused himself was not owed money. He engaged in this course of conduct for his own enrichment and as a matter of business. Finally, it is clear from the events of October 27, 2010, that the extortion was planned to continue until a much larger measure of unjust enrichment had been extracted.

VICTIM IMPACT

[8] J.H. is a person with a criminal history, including, I heard, dealing in narcotics with Sandhu. He had a long association with Widdifield which in the past, I infer, has afforded him a measure of protection and immunity within the criminal subculture because of Widdifiled's leadership role in the Club. J.H. is obviously a person who knows the rules of the game and has played within and benefitted by them for many years. As I was saying in my reasons for conviction, he realized from the beginning that the matter of the "stupid tax" was serious and that he was going to have to submit to the Club's demands. He surrendered the yacht Dream Chaser without much protest, and I am certain that if Widdifiled and his confederates had not reached for more, I would never have heard the first thing about this case.

[9] As it is, however, the offences before me have had a material negative impact on the complainant. It appears that he has had to move away from Nanaimo. He claims to be unable to have a normal relationship with his children and grandchildren who continue to live locally. He fears for his life. His wife, D.H., who also testified at trial, has said much the same thing.

[10] As emphasized by defence counsel during submissions, the facts at trial did not show that the accused personally threatened or assaulted the complainant. However, it is clear that whether or not the complainant used the Club's name in his dealings with Crooks, J.H. has run seriously afoul of his former fellow travellers in the local underworld, especially Mr. Widdifield, and he has had to make himself scarce because of it. Considering the facts of the case, I doubt anyone would suggest that he was wrong. I would note, however, that these associations were a matter of the complainant's personal choice, and I suspect that for most law-abiding citizens, in light of J.H.'s history and lifestyle, sympathy will be circumscribed.

THE ACCUSED

[11] The accused, for his part, is now 63 years of age. For a person who, as I was told during the trial, has been a member of biker gangs for many, many years, he has a very modest criminal record, as follows:

December 30, 1974 - mischief, 12 months' probation

November 8, 1976 - impaired driving, six months' probation

December 1, 1976 - assault, 12 months' jail; impaired driving, a fine

1992 - assault, $300 fine

[12] This record is not only fairly minor but also dated. I note, however, that while Mr. Widdifield must be sentenced only on the present facts and on the basis of his proven record of criminal offending, s. 718.2(a)(iv) of the Criminal Code mandates that it is an aggravating circumstance on sentencing that the crimes at bar were committed for the benefit or at the direction of a criminal organization.

[13] There is, as well, another side of the accused's personality that did not see the light of day during this trial. He has been married for many years, and there is an admirable constancy in his domestic arrangements. He has lived in the same house in Nanaimo for decades where he has raised three daughters who would appear to be successfully launched in reputable, law-abiding directions. According to them, Mr. Widdifield is the centre of his family's life. I have read a number of letters from friends and associates testifying to his dependability, loyalty, probity, and forthrightness in all his dealings. It would seem, in other words, that the accused is a complicated man who conducts himself in pronouncedly different ways within two distinctly different spheres of life.

POSITIONS OF CROWN AND DEFENCE

[14] The Crown seeks a penitentiary term of six to eight years, a restitution order in favour of the complainant for the loss of the Dream Chaser, a s. 109 weapons prohibition for life, a DNA order, and an order forbidding contact with the complainant while the accused is incarcerated.

[15] The accused submits that a penitentiary sentence of 30 to 36 months would be fit in the circumstances. He took no position concerning the so-called ancillary orders but opposed the making of a restitution order.

[16] The parties were agreed that the two counts upon which Mr. Widdifield was convicted engaged the rule against multiple convictions, and accordingly, I ordered a conditional stay of proceedings on Count 7, the theft of the boat. I will impose sentence on Count 1, the extortion count, an offence punishable by a maximum of life imprisonment.

CASE AUTHORITIES

[17] The cases that I have found helpful in determining an appropriate range of sentence in this case include R. v. Violette, 2009 BCSC 1557, aff'd 2013 BCCA 31, which involved a four-year sentence imposed upon a 58-year-old member of the Hells Angels in Vancouver, who had a similarly modest criminal record consisting of an assault conviction for which he received a conditional discharge. Accompanied by a couple of associates, the accused had gone after a non-member of the Club to impose a "stupid tax" similar to the one involved in the present case for the alleged misuse of the Club's name and reputation. The complainant in that case was assaulted and though apparently he emerged unharmed, the trial judge described the attack as "particularly callous, vicious, brutal, and unprovoked."

[18] Violette shares some features with the present case. The extortion there, for example, was carried out on behalf of the Hells Angels in order to punish the complainant for dropping the Club's name. The complainant was assaulted but not badly injured. The accused was viewed as a leader and a driving force behind the commission of the offence.

[19] However, there are aggravating factors in the present case, that is, the case before me, which are absent from Violette. Here, the extortion was not a single incident but a drawn-out process over several months of increasing pressure and threats, culminating in actual violence. A valuable asset was extorted and sold with the clear threat of more to come. These factors were not present in Violette. In my view, the extent of the complainant's victimization in the present case exceeds that in Violette.

[20] I have also considered R. v. Blair, 2007 MBQB 287, aff'd 2008 MBCA 68, which seems to represent the higher end of the range of sentence for this type of offence, eight years. In Blair, the accused named Burling was convicted at trial of kidnapping, aggravated assault, failure to comply, and extortion, and he was on bail at the time of the offence. Burling had a lengthy criminal record, including convictions for violence. He showed no remorse.

[21] Burling led a local chapter of the Bandidos Motorcycle Club. He masterminded the offence in question, which involved luring the complainant to a location, capturing him, and then extorting him with threats and violence in order to collect a $6,000 debt. Burling's associates carried out this plan at his behest. After capturing the complainant and another person, they bound the complainant, threatened him, and then brutally beat him with weapons over the course of four hours. The complainant's hand was smashed with a sledgehammer. He lost half of his right index finger and suffered a broken nose and cheekbone. He had been beaten so badly that he was unrecognizable. While Burling was not present for the actual violence, the court found that he had directed the events by way of cell phone.

[22] Now, Blair resembles certain aspects of the present case. There was an extortion carried out on behalf of a criminal organization to collect a debt, and an accused viewed as a leader with regard to the offence who orchestrated the extortion but did not participate in the violence directly. However, the extent of the violence employed in Blair was more severe than in the case at bar. The evidence of luring the complainant to the locus of the mayhem was clearer, and of course, the bodily injury suffered by the complainant was disastrous, which is not the case here.

[23] Blair also involved a public kidnapping with a vehicle being forced off the road, as well as the capture and confinement of an additional person beyond the subject of the extortion.

[24] In my opinion, these factors, especially in light of the accused's long record and the fact that the offences were committed while he was on bail, make Blair a more aggravated case than the one before me. Accordingly, I consider that a sentence of eight years would be well outside the range.

[25] The following additional authorities have provided me with guidance in identifying a fit range of sentence.

[26] In R. v. Shea, 2011 NSCA 107, the accused had a lengthy and violent criminal record. With another person, he committed an invasion of the complainant's home, forcibly confined him, and assaulted him in order to retrieve an automobile that the accused thought he had taken from him. The court specifically found that the accused had been carrying weapons. The sentence in that case was one of six and one-half years.

[27] In R. v. Lindsay, 2009 ONCA 532, the offender appealed an effective sentence of six years for extortion. The appellant was a member of the Hells Angels. The victim was a dealer in black market satellite television equipment. The appellant and an associate, who were wearing their Hells Angels regalia at the time, demanded payment from the victim of $75,000 on threats of violence and bodily harm. In that case, as in this one, increasing pressure was exerted on the complainant over several months. The effects of the extortion on the complainant's family were described as devastating. The six-year sentence in that case was upheld.

[28] R. v. Coates, [2002] O.J. No. 5871 (S.C.), involved three accused who were found guilty of extortion. They demanded $70,000 and were successful in extorting $5,000 from the complainant. Threats were used but no violence. One accused, Coates, who had a record including conspiracy and theft, was given a sentence of five years less one year time served. A second accused, Johnstone, who had a record for assault, trafficking, and extortion, received four years, while a third, Walkinshaw, whose record consisted only of two assault convictions, received a sentence of three years. All three accused were associated with the Hells Angels.

[29] In R. v. Grant, 2009 MBCA 9, after a 47-day trial, the appellant, obviously a lifelong criminal, was convicted of trafficking in large amounts of hard drugs and committing extortion, demanding $60,000 from the victim for payment of some kind of drug debt arising from an old turf war between rival factions of the Hells Angels. Threats were used, but there was no actual violence. The extortion took place over the course of approximately two months. The accused was a member of the Hells Angels. A sentence of five years was reduced to four years on appeal in light of the totality principle.

[30] In R. v. Crawford, 2014 BCCA 175, the Crown appealed a three-and-one-half-year sentence following the accused's conviction for kidnapping and extortion. The accused in that case was one of five men involved in the commission of the crime. The complainant had received $400,000 to launder for criminal associates of the accused by transferring the funds through an associate in the United States. The transaction did not work out, but the funds were not returned. The complainant was abducted from a bar and taken to a loading dock where he was threatened with a Taser, masked, and handcuffed. He was later taken to an apartment where he was fastened to a chair and threatened at gunpoint. The complainant was released after he agreed to recover $100,000 from an associate and to make up the difference in cocaine. The appeal was allowed, and a sentence of five years was substituted. The accused was 44 years old and had no record.

[31] In R. v. Saumier, 2008 BCCA 473, the accused appealed a sentence of three years for extortion. The appellant was a cocaine dealer and did a "bit of debt collecting." The victim had become indebted to Mr. Saumier as a result of drug purchases, and the accused strong-armed the complainant out of his motor vehicle. The complainant was threatened with death if he told anybody about what had occurred. The trial judge found that the appellant had opted for a life of crime in 1995 and had a considerable record. The sentence was upheld by the Court of Appeal, describing it as being "in the upper range of extortion cases in which violence or organized crime have not featured."

[32] Another case not involving violence or organized crime in which an identical sentence was imposed was R. v. A.K., 2012 ONSC 5245. There, the accused owned and operated a convenience store chain. He repeatedly threatened three employees that he would call the police and report that they had stolen from him unless they paid him money. The accused and the complainants were Iranian. The accused told the complainants that he had military contacts in Iran and that he would use these to threaten their families. The accused in that case obtained around $50,000 from two of the complainants. His three-year sentence was upheld on appeal.

[33] Finally, in R. v. Anderson, 2004 BCSC 447, the accused was an associate of the Hells Angels who kidnapped and extorted the complainant to force him to pay some gambling debts that he owed to a third party. The complainant suffered minor injuries. The accused had a criminal record for break and enter, possession of a prohibited weapon, assault causing bodily harm, three simple assaults, and possession of an unregistered restricted weapon. The sentence imposed was five years.

DISCUSSION

[34] I should like to stress at the outset that I am keenly aware that sentencing is an individualised process. Precedent cases are helpful as a guide, as the sentence must be similar to those imposed on similar offenders for similar offences committed in similar circumstances. Ultimately, however, I must fashion a penalty that is fit for this accused in this case, bearing in mind the fundamental principle that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[35] The preeminent sentencing principles here are denunciation and deterrence, but rehabilitation has a role to play, as do the objectives of reparation for harm done to the victim and promotion of a sense of responsibility in the offender.

[36] I have carefully considered, as previously noted, the impact of the offences on the victim, including on his physical health at the time, which was not good, and upon his family. I remind myself as well that the offences were committed for the benefit of, at the direction of, or in association with a criminal organization.

[37] The authorities referred to above establish to my satisfaction that an appropriate sentence in the present case would be in the range of five to six years. Such a sentence would recognize, as previously stated, that the facts before me, involving an offender with similar antecedents, are more aggravated than in Violette, and would fall in line with the sentences imposed in the somewhat analogous cases of Grant, Anderson, and Crawford, while the upper end of the range, in my view, rests on the authority of Lindsay, a case of some factual similarity to the one at bar, although I approach that case with some caution as no reference was made in the judgment to the appellant's criminal record.

[38] In my respectful assessment, to adopt the accused's position on sentence would be to impose a penalty that falls below the range of fitness in all of the circumstances. I would not go as low as three years, as did my colleagues in Saumier and A.K., because as previously emphasized, they involved no violence or organized crime, and these are obvious and serious aggravating features in the present case.

[39] Into the mix must be introduced the Crown's application under s. 738(1)(a) of the Criminal Code for an order of restitution. Such an order is, in my view, fitting in this case to ensure that the complainant is compensated for his loss and the accused does not profit by his crime. Defence counsel urged me that there was no direct evidence that the accused benefitted from the Dream Chaser's sale, but when, in conjunction with all the other evidence, I recall Widdifiled and Sandhu walking away from the vessel with a bag from the purchaser containing $80,000 in cash, I have no doubt on that score.

[40] I would stress the following observations set out in R. v. Castro, 2010 ONCA 718 at para. 43, clarifying the meaning of an earlier case that called for restraint in making restitution orders:

The comment that a restitution order should be made with restraint and caution is sometimes taken out of context as a free-standing brake on the making of a compensation order. The comment by Laskin C.J.C. in Zelensky regarding restraint and caution was made in the context of a broader statement that the purpose of a compensation order should not be to enforce a civil obligation, particularly where the amount taken is unclear; rather, the purpose of a compensation order is as part of the sentence: see Zelensky, at pp. 961-62 S.C.R. The fact that a restitution order provides a convenient, rapid and inexpensive means of recovery for the victim, especially a vulnerable victim, is one of the considerations in favour of the making of such an order.

[41] The law is clear that such an order must not be made mechanically or without regard to the overall fitness of a penalty imposed. As restitution is part of the sentence and serves the same sentencing objectives as incarceration, namely, in this case, deterrence, reparation to the victim, and promotion of responsibility in the accused (see R. v. Nanos, 2013 BCCA 339), care must be taken to ensure that the combination of jail and restitution does not result in excessive punishment.

[42] The offence of extortion constitutes what was referred to in Nanos as a theft-related offence in respect of which ability to pay will be given little weight. As it happens, however, it is clear to me from the submissions made on this hearing that Mr. Widdifield is a man of property who has a substantial capacity to pay. Because of this, I am reasonably confident that the purpose of compensation in the sentencing process will be properly served, namely:

to emphasize the sanction imposed upon the offender;

to make the accused responsible for restitution to the victim;

to prevent the accused from profiting from his crime; and

to provide a convenient, rapid, and inexpensive means of recovery for the victim:

See R. v. Devgan (1999), 1999 CanLII 2412 (ON CA), 136 C.C.C. (3d) 238 (Ont. C.A.)

[43] As to the amount of restitution, the complainant's testimony at trial was that he purchased Dream Chaser in 2007 for $137,500, and at the beginning of the extortion, it was briefly listed for sale by a yacht broker at $115,000. The evidence established that Sandhu offered it to Nathan Churchill for $90,000 before settling on $80,000 in cash. The best evidence of value presented to me, however, was an October 7, 2010, "Vessel Condition Survey" prepared by a local expert for Nathan Churchill indicating that Dream Chaser's fair market value at that time was $120,000, and its replacement cost $375,000.

[44] Section 738(1)(a) of the Criminal Code vests me with discretion to order restitution in an amount not exceeding the replacement value of the property as of the date the order is imposed. In all of the circumstances, I consider it just and proportionate to order the accused to pay restitution to the complainant in the amount of $120,000 based on the October 2010 survey referred to above. To order the replacement cost referred to therein would result, in my view, in overcompensation. There is clear authority for the proposition that the principles of joint and several liability apply to restitution in cases involving common enterprise crimes, and apportionment or allocation amongst the members of the enterprise is not appropriate: see, for example, R. v. Gagnon 2000 CanLII 16863 (ON CA), [2000] O.J. 3410 (C.A.) at para. 139, and R. v. Perciballi 2001 CanLII 13394 (ON CA), [2001] O.J. 1712 (C.A.) at para. 39.

[45] I return now to my earlier observation that an appropriate range of sentence in this case would be five to six years. Taking into account the accused's age, his modest criminal record, and his good behaviour on bail during the four and a half years that it took, for various reasons, for the matter to come to trial, and bearing in mind that an important aspect of the penalty imposed will be the obligation to pay a large amount of restitution, I have determined that a fit custodial penalty would be at the lower end of the range stated.

[46] Mr. Widdifield, would you stand up, please.

[47] Mr. Widdifield, it is the judgment of this court that you should serve a custodial term of five years in a federal penitentiary. You may be seated.

[48] In accordance with s. 738(1)(a) of the Criminal Code, I hereby order the accused to pay restitution to the complainant in the amount of $120,000 without delay.

[49] In accordance with s. 487.051 of the Criminal Code, I order the accused to provide a sample of his DNA forthwith by the least intrusive means available for inclusion in the national databank.

[50] In accordance with s. 109 of the Criminal Code, I order that the accused is prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance for life.

[51] Finally, in accordance with s. 743.21 of the Criminal Code, I order that the accused is prohibited from communicating directly or indirectly with the complainant during the custodial period of his sentence.

[52] That is the judgment of this court.