R. v. Pearson, 2012 ABQB 240

Court of Queen ’ s Bench of Alberta Citation: R. v. Pearson, 2012 ABQB 240 Date: 20120416 Docket: 080975493Q1 Registry: Fort McMurray Between: Her Majesty the Queen Crown - and - Rory Raymond Pearson Accused _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ [ 1 ] These reasons follow an earlier oral decision imposing a conditional sentence on Rory Raymond Pearson following his guilty plea to the offence of attempted robbery. [ 2 ] The following facts were formally agreed to: (

a) on August 3, 2008 at about 1:30 p.m. Pearson entered a liquor store on Franklin Avenue in Fort McMurray, Alberta;

(

b) he “ held out ” a folding pocket knife to the store clerk; (

c) he said to the clerk “ I want some money ” ; the clerk said “ Oh really? ” Pearson responded “ No, not really ” ; (

d) the clerk backed away from the cash register and did not provide Pearson with any money; (

e) Pearson then proceeded to put the knife in his pocket and exited the store; (

f) Pearson walked a short distance to a waiting taxi; the taxi was eventually pulled over by RCMP and Pearson attempted to flee on foot; (

g) Pearson was arrested at gunpoint soon afterwards; he complied thereafter with all commands and was cooperative, admitting the offence and later providing a statement. [ 3 ] The following additional facts were before me and relevant to sentencing: (

a) Pearson was released on his own recognizance very soon after his arrest; (

b) A great deal of time passed between his release in early August, 2008 and the entry of his guilty plea on October 31, 2011, and eventual sentencing February 1, 2012; (

c) in that interim period, Pearson committed six offenses for which he has already been sentenced to fines and jail - these include four breaches of recognizance and two failures to appear. Details of these offences were not provided to me by the Crown. Through counsel I was provided some explanations for these post-offence convictions. As best I can tell they relate to minor, technical breaches, certainly nothing related to - on the surface at least - the attempted robbery with which I am primarily concerned; (

d) Pearson was sentenced to a total of 63 days in jail for these various post-offence convictions; (

e) Pearson was also convicted on August 18, 2008 of fraudently obtaining transportation and was sentenced to 10 days in jail. I was not informed of that offence date in relation to the August 3, 2008 offence date for the attempted robbery before me; (

f) these offences aside, Pearson has remained out of trouble with the law since August 3, 2008; (

g) there is some evidence that he has improved himself since the date of the attempted robbery offense; (

h) on October 31, 2011 the court ordered a pre-sentence report (PSR). A report of January 30, 2012 is before me. Of particular note: i. Pearson said his actions on August 3, 2008 were not premeditated, he was not under the influence of alcohol or drugs, but he was in his words in a state of “ temporary insanity ” ;

ii.

Pearson imagined that the clerk in the commercial premises was pretty traumatized; iii. he favours a community-based sentence and invites “ using my skills [renovation/landscaping] toward the community or toward the people I've hurt ” - in the way of a community service order; iv. his sister and mother speak to how the attempted robbery was out of character for him; Pearson expressed remorse to them for his actions; v. the RCMP's investigating officer described Pearson as a “ very docile individual" and "not your typical robbery guy ” , and didn't believe that Pearson was a dangerous individual; vi. although no one could point to evidence alcohol was involved in the commission of the offence, some of those interviewed for the PSR noted a history for drug use and abuse and recommended drug treatment and/or counseling for addiction and mental health.

Pearson appeared luke-warm toward counseling but, needless to say, he would attend if ordered by this court; vii. Pearson told the author of the PSR he uses marijuana on almost a daily basis. He denied he has a problem with its use; viii. Pearson, 31, is single, never married, and lives with his sister and brother in law in Fort McMurray. He is currently self employed laying carpets. He has been similarly employed over the years. He is a high school graduate but has no formal post-secondary education; ix. he is characterized as a loner. He is close to his family.

He would like to have a family of his own but, in his own words, he “ can't find anybody ” in this community. At the same time, he describes that while he knows many people, he doesn't have a lot of friends and he prefers to be left alone; x. there is some indication in Pearson's growing up of anti-social behavior including fighting on a great many occasions, some trouble with the law, and, of course, drug use; xi.

Pearson converted to the Muslim faith about 3 years ago, so it appears somewhat after the offence date in question; xii. the PSR author does not recommend Pearson for a community based sentence owing she says to the serious nature of the offence of which he is convicted, and to his failure to comply with court orders; xiii. there is no victim impact statement before me, and, other than Pearson's own speculations, no evidence regarding the impact of the attempted robbery on the store clerk. [ 4 ] Based on the evidence before me, I am not prepared to infer the store clerk was traumatized.

Again, the facts are simply that Pearson held out a folding pocket knife - no further description of the knife or its use was provided - he said “ I want some money ” , the clerk said “ Oh really? ” Pearson responded “ no, not really ” . The clerk backed away from the cash register and did not provide Pearson with any money. Pearson put the knife in his pocket and left the store.

While there is no evidence on the point, presumably Pearson was standing in front of the clerk when these events occurred. [ 5 ] Also based on the evidence, I am not prepared to find there was violence or attempted violence in the commission of this offence. This finding is relevant to the issue of whether Pearson committed a “ serious personal injury offence ” , a topic discussed in further detail below.

Positions of the parties [6] The Crown argued that on balance, a fit sentence in this case is18 months’ imprisonment together with a period of probation.The Crown opposed a conditional sentence. [7] Pearson argued for a sentence of two years less a day but to be served in the community as part of a conditional sentenceunder s. 742.1 of the Criminal Code R.S.C. 1985 c. C-4.6. The law [8] The leading authority on robberies of small commercial establishments - so-called convenience store robberies - is R. v.Johnas, 1982 ABCA 331. R. v. Johnas establishes a three-year starting point for such offences.

Of course that starting point is subject tothis court’s consideration of the circumstances including mitigating and aggravating factors as directed by s. 718.2(

a) the Criminal Code.As noted, the Crown supported a significant departure from the R. v. Johnas starting point. The Crown’s position does not relieve mehowever from deciding whether that is the appropriate custodial sentence in Pearson’s circumstances. I will deal with that issue as part ofmy consideration of Pearson's conditional sentence application, to which I now turn. [9]

Section 742.1 of the Criminal Code states: If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or acriminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or anoffence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and issatisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent withthe fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising theoffender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliancewith the conditions imposed under

section 742.3. [10] I am guided by R. v. Proulx, 2000 SCC 5 , 2000 S.C.C. 5 and the two-stage analysis set out in that case for whethera conditional sentence is appropriate in the circumstances. [11] The first stage is to determine whether the offence in question is specifically precluded by legislation, and if not, whether inthe circumstances it is an offence for which an appropriate sentence would either be probation on the one extreme, or a penitentiary termon the other. [12] If neither, then I must consider a conditional sentence application.

I must inquire whether a conditional sentence wouldendanger the safety of the community. And if not, I must then turn to whether I am satisfied that the fundamental purposes and principlesof sentencing as set out in ss. 718-718.2 of the Criminal Code - for example those discussed in R. v. Arcand, 2010 ABCA 363 - can bemet by the imposition of a conditional sentence.

The appropriate sentence [13] As to the first stage, no one disagrees it is impossible here that Pearson’s conviction for attempted robbery could result in aprobationary sentence. [14] It is also obvious that on the face of it, a penitentiary term of three years is the starting point for this category of offence.

Pearson can take some comfort in the Crown ’ s position in favour of 18 months. My own consideration of whether a penitentiary sentence is unfit, in all the circumstances, includes an assessment of the following mitigating and aggravating factors: (

a) mitigating factors: i. Pearson ’ s early guilty plea, or at least intention to plead guilty - no one suggests he ever intended to contest his guilt although it is fair to note that he pleaded guilty not to the original offence of robbery but to attempted robbery. I have no information how that plea agreement came about, or when. The bottom line is that court time was saved as was inconvenience to potential Crown witnesses; ii. Pearson ’ s cooperation with the authorities prior to his guilty plea including a full confession to police; iii.

His lack of a criminal history before the offence in question; iv. his expressions of remorse which I accept as sincere; v. at this stage of the analysis I am also taking into account Pearson's likelihood of re-offending, which I find to be minimal; the presence of family support in the community; a positive work record; and the attestations to his good character in the generally-positive PSR; vi. although perhaps not a mitigating factor as such, the Crown fairly notes that unlike many night-time robberies, which are perhaps the norm, Pearson commited the offence in question at 1:30 in the afternoon.

This is not a case, as referred to in R. v. Gouthro , 2010 ABCA 188 involving a ‘ lonely nighttime occupation in which employees are uniquely exposed to dangers ’ ; vii. in addition, Pearson was not masked; there was little evidence of planning, although I noted reference to a waiting cab outside the business establishment; and as I will expand upon in what follows, there is no Victim Impact Statement - nothing really going to the impact of the offence on the store clerk - and as already noted, no evidence of violence or attempted violence. (

b) aggravating factors: i. Pearson ’ s possession of a pocket knife in connection with the offence; ii. His ongoing use of marijuana - the suggestion he is weaning himself off of this still-illegal substance is contradicted by the PSR; and although there is no evidence he was under the influence of a drug at the time of the offence, there are ample indications he has had addiction problems with drugs and did at the time of the offence in question; iii.

I am not sure I can consider that he robbed a small commercial establishment to be an aggravating factor - in that it's an essential element of what gives rise to the 3-year starting point in the first place; but that is not to ignore that such robberies on their face, as the Crown argues, must be denounced as a matter of both specific and perhaps more importantly general deterrence; iv. I have also considered Pearson ’ s post-offence conduct and the unusual string of breaches.

On the face of it that may be an aggravating factor, but equally it might be argued it is to his credit in that he tasted incarceration, and has otherwise stayed out of trouble. There is some evidence of progress if not rehabilitation in the PSR, during the lengthy period of time since August, 2008. More compelling evidence of rehabilitation during the interim period would amount to a strong mitigating factor in sentence. On these facts, overall I would assess his conduct since the offence date to be a neutral factor in sentencing.

[ 15 ] My consideration of aggravating and mitigating factors together with other relevant principles in sentencing in ss. 718 to 718.2 of the Criminal Code convinces me that in Pearson ’ s individual circumstances it is appropriate to move significantly off the three-year starting point in R. v. Johnas . There are many decisions of the Alberta courts that reach the same result when imposing sentence for so-called “ low end ” robberies: e.g., R. v. Fontaine , 2008 ABCA 352 .

I would certainly not have sentenced Pearson to any more than 18 months ’ incarceration. [ 16 ] As I am not dealing then with a penitentiary sentence, I turn to the second part of the R. v. Proulx analysis. Would a conditional sentence endanger the safety of the community? [ 17 ] There is no evidence in this regard, and indeed all of the evidence points to the contrary. By all accounts the events of August 3, 2008 were an isolated incident for which there was no history of related misconduct. Nothing related has occurred since the date of the offence.

If anything Pearson is in at least as good a place if not a better one than he was some three and half years ago. Overall, I have no basis therefore to conclude that a conditional sentence would endanger the safety of the community. [ 18 ] As such, R. v. Proulx requires me to consider whether I am satisfied that the fundamental purposes and principles of sentencing will be met by a conditional sentence.

The fundamental purposes and principles of sentencing [ 19 ] A just sanction under s. 718 of the Criminal Code is one which has one or more of the following objectives: it denounces unlawful conduct; deters the offender and others from commiting similar offences; separates offenders from society, where necessary; assists offenders in rehabilitation; provides reparations for harm done to victims; and promotes a sense of responsibility in offenders. [ 20 ]

Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 21 ]

Section 718.2 of the Criminal Code provides that relevant aggravating and mitigating principles will be taken into account, including certain deemed aggravating factors none of which are in play in Pearson ’ s case. Of course I have already considered those factors in connection with the appropriate sentence of incarceration, above. [ 22 ] Importantly, s. 718.2(

d) of the Criminal Code provides than an offender should not be deprived of his liberty if less restrictive sanctions may be appropriate in the circumstances. [ 23 ] And 718.2(

e) of the Criminal Code directs that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [ 24 ] At the end of the day, as noted in R. v. Arcand at para. 63 : “ the object of the sentencing exercise is to draw on all sentencing principles in determining a just and appropriate sentence which reflects the gravity of the offence and the degree of moral blameworthiness of the offender. ” [ 25 ] With these purposes and principles in mind, I have considered a number of authorities on the questions which follow.

Robbery and conditional sentences [ 26 ] Is there any binding authority that preludes my consideration of a conditional sentence for the offense of robbery or attempted robbery? The short answer appears to be no: R. v. Muldoon , 2006 ABCA 321 ; R. v. Chalifoux , 2005 ABCA 207 ; R. v. Goin , 1999 ABCA 34 are all cases in which conditional sentences in robberies were in the balance, and not ruled impermissible. There are numerous cases in which sentencing judges in the provincial courts have imposed conditional sentences in the face of robbery convictions: e.g. R. v. Otter , 2010 ABPC 218 and R. v.

Grunerud , 2007 ABPC 82 . [ 27 ] I also have to ask whether I am constrained by the recent Criminal Code amendments giving rise to s. 742.1 , in force as of December 1, 2007 and thus applying to Pearson ’ s offence committed August 3, 2008? “ Serious personal injury offence ” [ 28 ] The amendment to s. 742.1 of the Criminal Code precludes the imposition of a conditional sentence if a person is convicted of a “ serious personal injury offence ” , as that term is defined by s. 752 of the Criminal Code . [ 29 ] A “ serious personal injury offence ” means: (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving: (

i) the use or attempted use of violence against another person; or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, and for which the offender may be sentenced to imprisonment for ten years or more … [ 30 ] Many courts have considered the meaning of serious personal injury offence and in particular the underlying element of “use or attempted use of violence”. [ 31 ] As a starting point, I agree with the observation in R. v.

Draper , 2010 MBCA 35 at para. 40 that: It appears to be an open question at the present time whether a charge of robbery always constitutes a serious personal injury offence. [emphasis in original] [ 32 ] In this regard I have reviewed cases such as R. v. Lebar , 2010 ONCA 220 , R. v. Hendsbee (C.B.), 2009 NSPC 50 ; R. v. Ferguson and Whitefish , 2009 BCPC 73 ; and R. v. Thompson , 2009 ONCJ 359 . [ 33 ] In Alberta the most relevant authority is R. v. Ponticorvo , 2009 ABCA 117 .

[34] In R. v. Ponticorvo, the court commented on the word “serious” as part of the expression “serious personal injury offense”,for purposes of s. 742.1: [14] The respondent submits that the violence or endangerment on which the Crown relies to constitute a serious personal injuryoffence must be objectively serious, and that the offence here was not objectively serious. The respondent relies on R. v. Neve, 1999ABCA 206 , 1999 ABCA 206, 237 A.R. 201 where this Court considered the definition of “serious personal offence” in thecontext the dangerous offender provisions, in s. 753(1)(

a) of the Criminal Code. The Court concluded that Parliament intended that onlyobjectively serious violence and endangerment which involved a likelihood of material harm (physical or psychological) could constitutethe predicate offence for a dangerous offender designation. The Court considered the serious consequences of the designation, and therequirement in s. 753(1)(

a) that the predicate offence form part of a repetitive pattern of behaviour which established that the offenderconstituted a danger to the public. Further, the Court had regard to the reasons of LaForest, J. in R. v. Lyons, (SCC),[1987] 2 S.C.R. 309, who concluded that the dangerous offender provisions did not constitute cruel and unusual punishment because theprovisions referred to conduct which satisfied a high standard of seriousness. [15] In our view, the restrictive definition adopted by the Court in Neve does not apply in the context of s. 742.1 which authorizes theimposition of a conditional sentence.

The considerations that led the Court in Neve to adopt the restricted definition of serious personalinjury offence are not present here. [the court stated:] In the context of s. 742.1, the use or attempted use of violence suffices and does notrequire any overlay of objective seriousness. [35] That being said, the court in R. v. Ponticorvo also stated: [16] It appears that the amendment to s. 742.1, which came into force on December 1, 2007, was not drawn to the attention of thesentencing judge, and he did not rule on the point.

The law precludes a CSO if a person is convicted of a serious personal injury offence.The agreed statement of facts discloses that the respondent swung a knife three times, at a police officer who was in close proximity,forcing him to back away down some stairs. The assault ended when another officer shot the respondent and disabled him from pursinghis goal. In the circumstances of this case, the assault with a weapon, involved the use of violence or attempted use of violence was andtherefore a serious personal injury offence.

We are not saying that every threat with a weapon involves the use or attempted use ofviolence. For instance, it may be that the act of brandishing a weapon at a person from a distance, with no immediate apparent danger tothe victim, does not fall within the phrase, violence or attempted use of violence. That was not the case here. [emphasis added] [36] I have also considered R. v.

Goulet, 2011 ABCA 230 and the discussion in that case of the importance of context whenconsidering a conditional sentence and the element of serious personal injury: [12] The definition of serious personal injury offence, and criminal liability in general, focus on the conduct of individuals. Butconduct, including criminal conduct, does not happen in a vacuum. Particularly in the case of offences that relate to the creation of risk,the context in which the criminal act takes place will be relevant. For example, starting a fire may be benign (even useful), or it may bearson, depending on the entire context.

Likewise, leaving the scene of an accident can have very different consequences, depending onthe overall context. Abandoning an injured person on a warm day in a crowded place is a criminal act, but it is quite a different thingfrom abandoning an injured person on a remote country road in the middle of winter. The former might be eligible for a conditionalsentence in some cases, the latter not. The context is critical. [13] The authorities that support using the entire context when deciding matters in the criminal law were helpfully summarized in R.v. Ali, 2010 ABPC 393 , 2010 ABPC 393 at paras. 13-7: 13.

A sentencing judge is entitled to look to the circumstances surrounding the offence, including actions that do not form therequisite elements of the offence. Courts have repeatedly accepted that the context of the offence is relevant. For instance, in Neve theAlberta Court of Appeal observed at para. 76: . . . the violence or endangerment under ss. 752(a)(

i) and (ii) respectively should be objectively serious (whether the subject conduct isviewed by itself or in the context of other actions) . . . (Emphasis added)

… 17. The foregoing cases demonstrate that whether an offence constitutes a “ serious personal injury offence ” is a contextual analysis that is informed by the totality of the circumstances of the conduct outlined in s. 752 (

a) and does not need to be an essential element of the offence to transform the offence into a serious personal injury offence. In assessing the existence of endangerment arising from the conduct of the accused, it is relevant to look at the context in which the conduct occurred. [ 37 ] Further on the question of “ violence ” , I note that Pearson pleaded guilty to ss. 463/334(

b) and as worded in the indictment, that he attempted to steal money while armed with an offensive weapon. That wording is consistent with s. 343 (

d) of the Criminal Code : 343. Every one commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. [ 38 ] The Ontario Court of Appeal in R. v. Lebar noted at para. 33 that robbery can be committed in many ways, not all including the use or attempted use of violence. The court noted the distinction between s. 343 (

d) and, for example, s. 343 (

a) which incorporates violence categorically as an element of the offence. The court concluded: from the wording of [s. 343(d)] it is clear that the use or attempted use of violence is not an essential element. For a finding of guilt, the

section merely requires that the Crown prove that the accused stole something [or as here attempted] while armed with an offensive weapon. If violence is found to have been involved, it is merely one of the circumstances under which the robbery was committed. [ 39 ] And at para 50 in R. v. Lebar the court stated: A finding that violence was used remains a matter of factual determination for the trial judge. Whether the criminal conduct amounted to the use or attempted use of violence is a matter relating to the circumstances under which the crime was committed.

This is not tantamount to an objective assessment of the seriousness of the violence; rather it is a question of determining whether the evidence proves that violence was actually used. [ 40 ] To a similar effect, MacAdam J. in R. v. Foley , 2010 NSSC 449 commented at para. 31 : … it is not the specific elements of the offence that will determine whether it is a serious personal injury offence but rather whether the

circumstances bring the offence within the definition of a serious personal injury offence. [ 41 ] On the facts in R. v. Lebar violence was found when the accused approached a store clerk from behind, touched her shoulder, produced a knife with a five-inch blade and held it close to her for the purpose of requiring her to yield to a demand for money. Money was obtained. The clerk was traumatized; in her victim impact statement at sentencing she stated she remained fearful. [ 42 ] I have noted that the Nova Scotia Court of Appeal in R. v. Griffin , 2011 NBCA 103 engaged in a similar analysis of s. 343 (

a) and (d), respectively, on the question of violence, as did the Alberta Provincial Court in R. v. Conlon , 2011 ABPC 259 , affirmed at 2011 ABCA 379 , and the Manitoba Provincial Court in R. v. Kotelko and Lindell , 2011 MBPC 76 , although each from a somewhat different vantage point. [ 43 ] In R. v. Griffin the court concluded the question is not whether robbery can be committed without violence, but whether the particular robbery before the court was committed with violence. In R. v. Griffin , the accused tapped a large, 10-inch knife on a counter near the till at a service station. Griffin demanded money.

He wore a black hoodie over his head and sunglasses, and was to that extent disguised. His conversation with the attendant was, after tapping the knife on the counter: “ Cash ” ; “ How much? ” ; “ All of it. ” After being given some of the cash, Griffin stated “ The rest ” . A total of $700 was stolen before Griffin fled the scene. [ 44 ] The Court of Appeal overturned the sentencing judge, who had granted a conditional sentence after finding that no violence existed in the use of the knife. [ 45 ] I am persuaded that Pearson's case is distinguishable from the facts in such cases as R. v. Lebar and R. v.

Griffin : there is for example no evidence as to the size or shape of Pearson's folding knife, or indeed what he did with it other than hold it out to the store clerk; he was not disguised or concealed in any way; he was equivocal in his demand for money; unlike Griffin, did not persist in his requests for cash; of course he took no cash, but rather, put his knife in his pocket and left the premises. [ 46 ] I conclude on those facts, and mindful of the authorities by which I am bound or may be persuaded, that in Pearson ’ s unique circumstances there was no violence or attempted violence and as such no personal injury offence.

I agree with the submission of Pearson ’ s counsel that this was at best a “ feeble attempt ” at robbery. At the risk of repetition, I again note the absence of evidence before me of what Pearson did with the knife other than 'hold it out', absence of details of the folding knife itself, no evidence regarding the effect of the encounter on the clerk. The clerk's response “ Oh really? ” perhaps suggests incredulity rather than fear.

These circumstances, taken together with Pearson ’ s next comment - “ No, not really ” - followed by his immediate departure, all suggest the most innocuous attempted robbery imaginable. [ 47 ] I find that Pearson ’ s conduct falls within the exception, so to speak, in R. v. Ponticorvo , where again the court notes that “ [not] every threat with a weapon involves the use or attempted use of violence ” . [ 48 ] Nor would I conclude that the ‘ for instance ’ posed in R. v.

Ponticorvo - where the court states it may be that the act of brandishing a weapon at a person from a distance, with no immediate apparent danger to the victim, does not fall within the phrase “ violence or attempted use of violence ” - is the only conceivable example of non-violent conduct. [ 49 ] Finally, I am confident that my analysis and conclusion on this point is consistent with the approach required in R. v. Goulet , which again calls for a contextual analysis that is informed by the totality of the circumstances.

The balance of the Proulx test [ 50 ] With these findings made I am liberty to complete my consideration of whether a conditional sentence is appropriate.

[ 51 ] Of course I have already commented at length on the mitigating versus aggravating circumstances that support a sentence significantly below the R. v. Johnas starting-point, and equally inform this stage of the sentencing analysis. [ 52 ] I am mindful of the commentary in cases such as R. v. Muldoon , 2006 ABCA 321 and R. v.

Brady , 1998 ABCA 7 that while the sentencing judge is obliged to treat denunciation and deterrence as the primary and most serious considerations on sentencing for robbery, in the particular circumstances of the case there is room for serious consideration of the rehabilitation aspect of sentencing, and in appropriate cases the rehabilitation aspect may counter denunciation and deterrence to enable the court then to entertain a conditional sentence. [ 53 ] Here, I have found there is no evidence of future risk to the community, or of any significant need for specific deterrence.

General deterrence is always a primary factor and cannot be minimized.

But countering that factor in Pearson ’ s individual circumstances are the relatively innocuous circumstances of the offence, the fact he has taken responsibility for his actions and is genuinely remorseful, and that he comes before the court without a prior record for criminal misconduct. [ 54 ] Given all of the circumstances I find that a conditional sentence is a proportional response which reflects the gravity of the offence and the degree of moral blameworthiness of this offender. [ 55 ] A conditional sentence can be fashioned which will assist Pearson in his rehabilitation, and which will promote in him a sense of responsibility for his actions.

Such a sentence is in accord with s. 718.2 (

d) of the Criminal Code which provides that Pearson should not be deprived of his liberty if less restrictive sanctions may be appropriate in the circumstances. It is in accord with the s. 718.2(

e) Criminal Code factor that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered. [ 56 ] Pearson is sentenced then to a period of two years less one day, to be served in the community pursuant to a conditional sentence order. The order was entered into shortly after the sentence was imposed and well before these reasons were published. For the record, in additional to statutory terms, the order includes that Pearson be confined to his residence for the first year with the usual exceptions for employment and other specified attendances.

He is subject to a curfew for the balance of the sentence. He is to attend any recommended assessment, counseling or treatment. He is to abstain from the possession or use of alcohol or other intoxicants including of course illicit drugs. He is to complete 240 hours of community service within the first 18 months of the sentence. He is further sentenced to a period of two years ’ probation following the completion of the conditional sentence. Heard on the 1 st day of February, 2012. Dated at the City of Edmonton, Alberta this 13 th day of April, 2012. Peter Michalyshyn J.C.Q.B.A. Appearances:

Weronika A. Granosik for the Crown Jonathan M. Lemieux for the Accused