QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 444 Date: 2007 11 29 Docket: Q.B. CNJ 43/07 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN [J.L.P.] AND [T.T.A.] Counsel Bryce Pashovitz for the Crown Jeffrey W. Deagle for [J.L.P.] Robin Neufeld for [T.T.A.] SENTENCING CHICOINE, J. November 29, 2007 Note: This sentencing decision was read into the record of the trial on November 29, 2007. The transcript of the proceedings is the official record. INTRODUCTION [1] [J.L.P.] and [T.T.A.] have been found guilty after trial of committing two offences, namely: That on or about the 12th day of January, 2007 at or near Regina in the Province of Saskatchewan, they did steal cash and miscellaneous items, the property of Southland Corporation (Devonshire Seven Eleven), and at the time thereof did use violence against Larry Bryska, contrary to s. 344(b) of the Criminal Code; That on or about the 12th day of January, 2007 at or near Regina in the Province of Saskatchewan, they did with intent to commit an indictable offence, have their faces masked, contrary to s. 351(2) of the Criminal Code. [2] It is not my intention to review all of the findings of fact upon which the convictions were based as previously rendered decision on October 10, 2007. It would be useful, however, to summarize those findings in order to put the offences in their proper perspective for the purpose of determining the appropriate sentence for each. [3] The offence of robbery with violence relates to robbery which occurred at about 5:30 a.m. on January 12, 2007 at the Seven-Eleven convenience store at the intersection of Devonshire Drive and Rochdale Boulevard in the City of Regina. Four masked individuals in dark clothing entered the store. Three approached the loan store clerk behind the counter and the fourth, being Mr. [J.L.P.], stood guard at the door. Mr. [J.L.P.] was holding some sort of bar or pole variously described as or chair or table leg. least two of the individuals who approached the counter were carrying knives. The clerk was forced to the floor. At one point one of the robbers said, "Don't stab him. Just kick him in the head." Two of the individuals, one of whom was 13 years old, grabbed about 120 packs of cigarettes and put them in their backpack or jackets. The other individual, Mr. [T.T.A.], took the till tray with $150.00 to $180.00 in cash. Before leaving the store, one of these individuals kicked the clerk in the head twice. All four exited the store and got into car which headed east on Rochdale Boulevard. [4] At the time of the robbery, another employee was in back room of the store and was able to view the robbery in progress on video monitor. He called the police and advised them that the robbers had left in what he thought was Chrysler or Dodge automobile. [5] Cst. Craig Solomon of the Regina City Police heard of the robbery while on patrol in marked Ford Expedition near the intersection of McCarthy Boulevard and 9th Avenue North. He and his partner proceeded north on McCarthy. They noted Chrysler Intrepid that was proceeding east on Rochdale make right turn and thereafter proceed south on McCarthy. The officers made U-turn to follow this vehicle with emergency lights and siren activated. At speed of 100 kms per hour the police vehicle was just keeping pace with the Chrysler. The posted speed limit on that street is 50 kms per hour. The vehicles proceeded through green lights at the intersections of Dalgliesh Drive and Rink Avenue. The getaway vehicle went through red light at 9th Avenue North at which time the police officers discontinued the pursuit. Cst. Solomon noted the vehicle to make left turn on red light at 7th Avenue North. [6] Identification of Mr. [J.L.P.] and Mr. [T.T.A.] as participants in this robbery was accomplished through oral testimony of two witnesses subpoenaed to testify at the trial Mr. [J.L.P.]'s brother-in-law and the 13-year-old accomplice. THE ACCUSED [7] Mr. [J.L.P.] is now 19 years of age and has resided in Regina since age 10 following his parents' separation. He has good relationship with his mother. Unfortunately, his father was victim of murder in 1999 when his son would have been 11 years old. Mr. [J.L.P.] suffers from some unresolved issues as result of his father's tragic death, evidenced by the fact that he was convicted of his first criminal offence at age 12. [8] Mr. [J.L.P.] is few credits shy of getting his Grade 12 diploma. He had planned to attend an adult education program at the time of his arrest. He has worked as an electrician's helper for his mother's boyfriend and he has an interest in carpentry. He admits to substance abuse, including alcohol, marijuana and cocaine. [9] Mr. [T.T.A.] is also 19 years of age. He grew up on the Pasqua First Nation. He does not get along with his parents. He lived with his grandparents most of the time. Unfortunately, his grandfather died two years ago. [10] Mr. [T.T.A.] has not completed his grade 10. He started using alcohol and drugs at age 13, and continues to use marijuana and cocaine. He plans to continue his education, get married and lead normal life. MR. [J.L.P.]’S CRIMINAL RECORD [11] Mr. [J.L.P.] has fairly significant criminal record which includes convictions for offences against the person, against property and against the administration of law and justice. His first conviction as young offender was for break, enter and theft at age 12 and was twice convicted for the same offence at age 13. He received open custody and probation. His first serious violent offence was an assault with weapon at age 14 for stabbing the victim in the neck with knife. He was sentenced to 10 months secure custody. At age 15, he was convicted of robbery which involved theft of gold earring from 14-year-old victim. He received sentence of 12 months in secure custody and six months supervision in the community. At the same time, he was convicted of possession of stolen vehicle and for flight from police for which he received concurrent sentence. month later, he was convicted of possession of stolen vehicle and escaping lawful custody for which he was sentenced to 280 days in closed custody and 140 days supervision in the community, concurrent. [12] In 2004 at age 16, Mr. [J.L.P.] was convicted of escaping lawful custody, two charges of taking vehicle without the owner's consent, one charge of theft of vehicle and charge of possession of break-in instruments. He was sentenced to total of 16 months closed custody and six months supervision in the community. In 2005 at age 17, he was convicted of possession of property under $5000.00 and being unlawfully at large for which he was sentenced to 100 days of closed custody on each charge and 50 days supervision in the community. At the same time, he was convicted of uttering threats and received concurrent sentence. [13] Mr. [J.L.P.]'s record as an adult consists of conviction in September of 2006 for driving while impaired and another conviction for possession of stolen vehicle for which he received custodial sentences of two months on each charge, concurrent. MR. [T.T.A.]’S CRIMINALRECORD [14] Mr. [T.T.A.] also has significant criminal record consisting of 35 convictions, all as youth. [15] His first conviction was in 2001 at age 13 on two charges of robbery, one charge of theft under $5000.00, one charge of possession of property obtained by crime, and two charges against the administration of justice for failing to attend court and failing to comply with recognizance. He received four months open custody and one year of probation. Two months later he was convicted of being unlawfully at large and sentenced to time served. Two months after that, he was convicted of one charge of escaping lawful custody, three charges of possession of property obtained by crime under $5000.00, three charges of taking motor vehicle without the owner's consent, and one charge of theft under $5000.00. He was sentenced to three months in secure custody and nine months of probation on each charge to be served concurrently. [16] In 2002 at age 14, Mr. [T.T.A.] was convicted of attempt to break and enter and was sentenced to time served, being 26 days. few months later, he was convicted of three charges of possession of property obtained by crime over $5000.00 and charge of flight from police officer. He was sentenced to 46 days time served plus an additional four months of secure custody. [17] In 2003, before his 14th birthday, he was convicted of theft under $5000.00, failing to comply with court order and mischief. He was sentenced to five months of secure custody. After his 14th birthday, he was convicted of possession of stolen goods over $5000.00 and taking motor vehicle without the owner's consent. He received sentence of 320 days and 160 days of supervision in the community. [18] In 2004, at age 15, Mr. [T.T.A.] was convicted of dangerous operation of motor vehicle, carrying concealed weapon and possession of property obtained by crime over $5000.00. He was sentenced to 12 months closed custody and months of supervision in the community. [19] In 2005, at age 16, Mr. [T.T.A.] was convicted of possession of property obtained by crime over $5000.00, failing to stop at the scene of an accident, dangerous driving, and obstruction of peace officer. He received sentence of 260 days closed custody and 130 days supervision in the community. [20] Mr. [T.T.A.]'s last conviction as youth was in January of 2006 at age 17, for mischief under $5000.00 for which he was sentenced to 20 days of closed custody and 10 days of supervision in the community. PRINCIPLES OF SENTENCING [21] The purpose and principles of sentencing are outlined in s. 718 of the Criminal Code which states: 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct (b) to deter the offender and other persons from committing offences (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [22] The following sections of the Code are also relevant: 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender 718.2 court that imposes sentence shall also take into consideration the following principles, namely: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) and offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. APPLICATION OF SENTENCING PRINCIPLES [23] In applying these principles, consider the following factors to be aggravating: The robbery was committed against person in vulnerable position. Attendants of all-night convenience stores work evening and night-time shifts, often at little more than minimum wage. They are often required to work alone or with only one other co-worker. They are subjected to threats of violence and at times physical harm. They often suffer significant and lasting mental anguish from the traumatic experience. All courts have recognized the need to protect people in these positions. The accuseds' criminal records, which have already described in detail, are appalling. While most of the offences in respect to Mr. [J.L.P.] and all of the offences in respect of Mr. [T.T.A.] were committed when they were youth, the records show failure to respond to progressively longer and more restrictive sentences. The gratuitous assault upon the attendant in this case the kick in the head prior to leaving the store with the stolen cash and cigarettes brings the offence to yet another level. The fact that 13-year-old was conscripted to participate in this serious and violent crime. The fact that high speed vehicle chase ensued after the robbery on major thoroughfare in the City of Regina, with the getaway vehicle approaching speeds of 100 kms per hour and driving through red lights. Were it not for the Regina City Police policy of restraint in high speed pursuits, innocent bystanders could have been killed or injured. The fact that neither accused shows any remorse for his actions and for the harm which he has inflicted upon the victim or the owner of the business. These are all factors which militate against sentence in the lower range of sentences for offences of this nature. [24] The only factor that might be in any way considered mitigating is the lack of parental care and guidance which each of the accused have endured from an early age. [25] Section 718.2(b) of the Code directs that sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The prosecutor and defence counsel have referred to number of cases in the course of their submissions which prescribe range of sentence for robberies with violence. [26] Among the cases referred to by the Crown was R. v. Ahenakew, [2001] S.J. No. 695, 2001 SKCA 117 (CanLII), 213 Sask. R. 292 wherein the Saskatchewan Court of Appeal determined that conditional sentence of two years less day for robbery with violence committed at bar was inadequate. Mister Justice Wakeling said the following at para. 7: The trial judge erred in imposing conditional sentence. This Court said as follows in R. v. Severight (1996), 1996 CanLII 4934 (SK CA), 137 Sask. R. 306: We have frequently pointed out that robbery with violence is the type of crime from which the public is to be protected. Accordingly any sentence imposed must leave no doubt that such conduct will not be tolerated. Armed robbery involves an inherent danger to human life because escalation of violence toward the victim or lawful resistance by the victim to an attack can easily result in death or serious bodily harm. The following statement of Wakeling J.A., speaking for this Court in R. v. Alexson, [1991] S.J. No. 268(Sask. C.A., June 1991), is apposite: This Court has repeatedly indicated that offences of this nature will be treated severely. This is the only means available to the courts to discourage crimes of this nature which involve victims who are particularly vulnerable to such an attack. The range of sentences is such that years is at the lower end of the scale for an offence of this nature. After giving credit for six months already served as conditional sentence and the community service already put in, the court decided that sentence of two-years-less-a-day of imprisonment would be imposed from the date of the appeal decision. [27] In this case, the Crown recommends that both accused receive sentence of more than two years in addition to the time already served. Both accused have been in custody since January 31, 2007, which is now almost 10 months. [28] Defence counsel has referred me to the case of R. v. Cheekinew 2007 SKCA (SentDig) 24, wherein 19-year-old appealed an 18 month jail sentence for robbery with violence committed on an individual at bus stop. The Saskatchewan Court of Appeal dismissed the appeal. His previous record included two robbery convictions and one theft related. The case is only reported in the sentencing digest so do not know what factors influenced the provincial court judge to sentence the offender to 18 months. It would be unusual for the Court of Appeal to increase sentence on an appeal by the accused and it does not appear that the Crown had cross-appealed. [29] Defence counsel also referred to R. v. Halkett [2002] SKCA (SentDig) 50, wherein 21-year-old received sentence of two-years-less-a-day from the Provincial Court Judge for robbery with violence which involved entering into home with an accomplice, assaulting the male victim and his wife, and leaving with money, jewellery and the victim's truck. This accuseds' previous record included robbery with violence, assault causing bodily harm, and property related offences. On Crown appeal, the Saskatchewan Court of Appeal increased the sentence to three years. [30] In addition to the cases referred to me by counsel, have read number of cases from this jurisdiction involving sentences for robbery with violence including R. v. Bowman, 1988 CanLII 5105 (SK CA), [1988] S.J. No. 471, 67 Sask. R. 314, wherein Mr. Justice Vancise decided that sentence of four years concurrent was not appropriate in that case where the accused had committed four previous armed robberies. He stated: [The sentence] fails to take into account the fact that this Court on number of occasions has stated that it will impose long sentences on people who victimize persons who are vulnerable, such as taxi drivers, shopkeepers and employees who work for 24-hour convenience stores. The trial judge, in our opinion, failed to adequately take into account the need for the protection of the public from individuals such as the accused. [31] In R. v. Warkentin, 1994 CanLII 3877 (SK CA), [1994] S.J. No. 591, 125 Sask. R. 236, Mister Justice Cameron set aside sentence of one year incarceration to be served concurrently for four armed robbery convictions and substituted four years concurrent in respect of each count. He stated (at para. 5): With respect, we are of the view the armed robbery sentences imposed under section 344 were unfit. They fit neither the offender nor the offences and must be increased, having regard for seriousness of the offenses and the need to protect the public, deter crime, and uphold society's confidence in the administration of justice, including effective enforcement of the Criminal Code. .... [32] have also considered R. v. Sangwais, [2002] S.J. No. 298, 2002 SKCA 63 (CanLII), 223 Sask. R. 222, in which the accused robbed variety store in small town, striking 50-year-old female clerk on the head with long piece of wood and tying her up. He had lengthy criminal record with 37 prior convictions including assault causing bodily harm, assault, weapons offences and many offences against the administration of justice. The trial judge gave him two-year-less-a-day conditional sentence, taking into account that he had spent 16 months on remand. The Saskatchewan Court of Appeal stated that the trial judge had failed to give consideration to the gravity of the offence and had ignored the objectives of denunciation and deterrence and public confidence in the administration of justice. The Court of Appeal increased the sentence to two-years-less-a-day for the date of the appeal. Considering the time on remand, this was equivalent to at least 56 months (more that 1/2 years). [33] In considering an appropriate sentence in the circumstances, must also take into consideration the effect of the violence committed against the victim, Mr. Bryska. While he did not provide victim impact statement, his demeanor in the stand clearly indicated the pain of having to once again relive the experience of being robbed at knife-point and being physically assaulted in the process. [34] Having considered the circumstances of the offences and the submissions of the Crown and counsel for each of the accused, will now proceed to consider what fit and proper sentence is in this case. [35] The law of Canada provides that person convicted of robbery is liable to imprisonment for life. For the offence of masking one's face with intent to commit an indictable offence, person can be sentenced to term not exceeding ten years. Parliament has dictated by these sentence ranges that the punishment for these crimes can be substantial. [36] Taking into consideration the sentencing principles that have referred to above, especially the need for deterrence and denunciation, have determined that sentences to be served in federal penitentiary are warranted in these circumstances. will particularize the sentences as regards to each offence and each offender in moment. [37] Having determined that the sentences will not be two years or less, it is not necessary for me to consider whether conditional sentence would be appropriate. In any event, am also of the opinion, even if the global sentence had been less than two years, that conditional sentences would be inconsistent with the fundamental purpose and principles set out in s. 718 and 718.2 for these offences and these offenders. THE SENTENCE [38] Having considered the aggravating and mitigating factors referred to earlier, the circumstances surrounding the commission of these offences, the harm perpetrated upon the victim, and taking into consideration the previous records of both of these accused, I have come to the conclusion that the best interests of society and the administration of justice will be served with sentences particularized as follows: For both Mr. [J.L.P.] and Mr. [T.T.A.], for the offence of robbery with violence under s. 344(b) of the Criminal Code; 40 months imprisonment. For both Mr. [J.L.P.] and Mr. [T.T.A.], for the offence of having their faces masked with intent to commit an indictable offence under s. 351(2) of the Criminal Code; four months of imprisonment consecutive to the sentence for the robbery with violence. The total of these sentences is 44 months. Having regard for the fact that both accused have been in custody since January 31, 2007 -- which is a period of nearly 10 months -- I will give each of them two for one credit for time served on remand which is 20 months. The sentence which each of them will serve from this date is two years to be served in a federal penitentiary. [39] The sentence that I have imposed on each of these offenders takes into consideration their lengthy record of offences committed as young offenders, the gravity of the offence, the violence against the victim, the fact that a high speed chase ensued within the City of Regina, and the need to deter not only these individuals but also anyone else who might consider committing the offence of robbery. These are appropriate sentences in the circumstances. note for the record that the Crown and counsel for Mr. [T.T.A.] had made joint submission for sentence of two years to be served in federal penitentiary so that Mr. [T.T.A.] could have access to better programming and treatment while incarcerated. Even without the joint submission, this court would have concluded that penitentiary term was warranted in addition to the time served on remand. [40] Counsel for Mr. [J.L.P.] on the other hand, had submitted that an additional 12 months would have been sufficient given that his client had served the equivalent of 20 months already. However, considering that there were few mitigating circumstances and numerous aggravating circumstances which take this offender and this offence out of the lower range of three years, and the fact that consecutive term of imprisonment was warranted for the s. 351(2) Criminal Code offence, can say with certainty that Mr. [J.L.P.] was facing sentence of more than two years in addition to time served on remand. In this case, parity in sentencing has worked in his favour. [41] The Crown has advised that no order for DNA sample is required in respect of Mr. [J.L.P.] as there has been previous order. However, do make an order in form 5.04 pursuant to s. 487.052(1) authorizing the taking from Mr. [T.T.A.], for the purposes of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose by means of the investigative procedures described in s. 487.06(1) as am satisfied it is in the best interests of the administration of justice to do so. [42] Further, pursuant to s. 109 of the Criminal Code also make an order prohibiting both Mr. [J.L.P.] and Mr. [T.T.A.] from possessing any firearm, cross bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period that begins on this day and ends not earlier than ten years after release from imprisonment. Both are required to forthwith surrender to peace officer anything the possession of which is prohibited by this order and to forthwith surrender every authorization, licence and registration certificate currently held by either of them relating to anything, the possession of which is now prohibited. The above items shall be forfeited to Her Majesty the Queen and may be disposed of as the Attorney-General directs. [43] The victim surcharge will be waived in respect of each Mr. [J.L.P.] and Mr. [T.T.A.] in consideration of the fact that they have already been in custody for ten months. G.A. Chicoine
The two accused were found guilty, after trial, of robbery with violence contrary to s. 344(b) of the Criminal Code and wearing a mask with the intent to commit an indictable offence contrary to s. 351(2) of the Code. HELD: The accused are sentenced to 40 months imprisonment for the offence of robbery with violence and 4 months consecutive for the offence of having their faces masked. Having regard for the fact that the accused have been in custody for nearly 10 months, the Court gives them two for one credit for time served in remand which is 20 months. The sentence is 2 years to be served in a federal penitentiary. The sentence takes into consideration their lengthy record of offences committed as young offenders, the gravity of the offence, the violence used against the victim, the fact that a high speed chase ensued in the city, and the need to deter not only these accused but other who might consider committing the offence of robbery.