R. v. Samoleski Date:, 2003 BCPC 136

Citation: R. v. Samoleski Date: 20030325 2003 BCPC 0136 File No: 31474-2C Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL ALAN SAMOLESKI EXCERPT FROM PROCEEDINGS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE N.N. PHILLIPS Counsel for the Crown: N.P. Seagram Counsel for the Accused: J.H. Pennington Place of Hearing: Penticton, B.C. Date of Hearing: March 25, 2003 Date of Sentence: March 25, 2003 [ 1 ] THE COURT : Michael Samoleski is before the court on Information 31474-C2. He makes his first appearance today in custody on that Information.

He has elected to have the matter dealt with in this court and asks that a plea of guilty be recorded. The charge before the court is one of robbery of R.K. on the 21st of March, 2003, in Penticton. [ 2 ] The circumstances with respect to that matter are that at approximately quarter after 2:00 this past Friday, Mr. Samoleski is alleged to have gone into the F. Store on Westminster Avenue in Penticton. This is described as a convenience type store. [ 3 ] The male who entered the store was noted to wander around and then approach Ms. K. who was working alone at the time.

The male was observed to reach into his jacket that was worn overtop of what was described as a hoody. Crown counsel clarified during the course of sentencing submissions that Mr. Samoleski reached with his right hand under his left jacket area and, pulling an item slightly out, he leaned forward over a counter. Ms. K. could see an item that she knew to be a knife under his jacket. It was not brandished, it was produced insofar as Ms. K. could see that he had a knife. [ 4 ] Mr. Samoleski at that point in time demanded all the money in the till. Ms. K. opened the till and Mr.

Samoleski reached across and grabbed all the money out of the till. There was approximately $300.00 to $350.00 in five, tens and twenties. He then fled westbound on Westminster. A thirteen year old boy who was outside got a look at Mr. Samoleski as he fled. Both that boy and the complainant in this matter gave a fairly detailed description of the person to the police who attended immediately. [ 5 ] The police also seized the video that had been running over the till. The male that could be seen in the video was a person who matched the description of that provided by the two witnesses. In particular, Mr.

Samoleski was, according to the witnesses and the video tape, wearing a rather distinctive jacket of a baseball style with a distinct logo on the back of the jacket. [ 6 ] That was significant because a police officer thought he had seen a male approximately one month before wearing a similar jacket and knew that person's first name to be Michael. That allowed the police to identify Mr. Samoleski as a possible suspect in this matter. [ 7 ] The police also made inquiries with respect to Mr. Samoleski's work environment and they learned, after speaking with his co- workers, that Mr.

Samoleski had been at work earlier in the day, that is March the 21st. He was wearing a jacket similar in description and appeared to be in a desperate state. [ 8 ] He asked the personnel member at his job location to get an advance on his paycheque. When that person told Mr. Samoleski that he could not do so until this coming Monday, Mr. Samoleski presented at that point as being in a desperate state. He said that he had not eaten in three days. The person who dealt with Mr. Samoleski at work offered him thirty dollars of his or her own personal funds. [ 9 ] Mr.

Samoleski, according to the Crown, spoke with other co-workers that day. He, too, presented to them as being upset; he needed money. He produced a large kitchen knife from his jacket and said he was going to get money somehow. [ 10 ] Mr. Samoleski was arrested on this matter after a complaint came in in Summerland on Sunday. Mr. Samoleski was observed by the police and when he appeared to see them, he ran. A brief foot chase ensued and Mr. Samoleski was caught. There were no charges out of the Summerland location. [ 11 ] Upon his arrest, Mr.

Samoleski gave what I am told is a detailed warned statement admitting to the robbery this past Friday. He said he did the robbery because he was high and he needed drugs, more particularly cocaine.

[ 12 ] He described the knife as being approximately one foot long. He said he would not have used the knife. He said he got about $300.00 from the robbery and that it was all gone within about an hour and a half and he did the robbery because of his addiction to drugs. The money was not recovered in this instance. [ 13 ] Those essentially are the circumstances with respect to this matter. No issue is taken at this sentencing hearing with those circumstances. [ 14 ] Mr. Samoleski has a criminal record that has been provided to the court.

I have also heard from Crown counsel with respect to entries that are not on that criminal record when Mr. Samoleski was last before the court in March of 2002. [ 15 ] I have also had the benefit over the lunch hour of reviewing a pre-sentence report that was prepared for that sentencing last March. Crown counsel advises, in addition to all of that, that Mr. Samoleski by way of the March, 2002 conviction, was in fact reporting to a probation officer here. He apparently reported last week on Wednesday, March the 19th, and there was nothing noted to be amiss. [ 16 ] Mr.

Samoleski apparently was taking counselling and has been employed. Mr. Pennington advises that Mr. Samoleski, after release from K.R.C.C. on his last matter, managed to get a good job at Layland Wood Products here in town and has been working there since January of this year and has had no problems until sometime mid-March. [ 17 ] The pre-sentence report that I have reviewed shows that Mr. Samoleski has had a longstanding drug problem. Clearly his criminal record bears that out. It was interesting to note in the pre-sentence report that was prepared approximately a year ago that Mr.

Leew, the probation officer, thought that Mr. Samoleski had not tackled the drug problem that he had and did not, and this is my word not his, did not appear to have much insight into the problem. [ 18 ] Crown counsel takes the position that with Mr. Samoleski's background and the serious nature of this offence, plus his criminal record with one adult conviction for robbery and a youth conviction for assault with intent to steal, that the court here needs to consider a federal sentence.

In balancing the mitigating circumstances here, his cooperation, the early guilty plea, Crown suggests that a three year sentence would be appropriate. [ 19 ] I then heard from Mr. Pennington on Mr. Samoleski's behalf. I am told that Mr. Samoleski is thirty-three years of age and as I noted a moment ago he has had good employment with the company that he has been at since January. [ 20 ] Mr. Pennington tells the court that not only did Mr.

Samoleski enter a guilty plea this date at the absolute earliest possible opportunity but that by yesterday morning he had made a full confession to the police and has been cooperative. [ 21 ] Mr. Samoleski has told Mr. Pennington that he acknowledges that what he did this past Friday was stupid but he did it because of the drugs and the crack cocaine in particular. [ 22 ] Mr. Samoleski has told Mr. Pennington that it was simply his intent to deal with the matter before the court right away. Mr. Samoleski, I am told, acknowledges a longstanding drug problem. It is interesting, as Mr.

Pennington points out, that there have been periods of time where Mr. Samoleski does well and does not appear to be addicted to the drugs in the sense of a daily habit but it is certainly a habit of longstanding. [ 23 ] The fact that Mr. Samoleski is able to have some long term employment and has had relationships that have been of some longstanding suggests that there are certainly periods of time where he is not in the throws of heavy cocaine usage. [ 24 ] Mr. Samoleski, for his part, also acknowledges that this incident must have really frightened Ms.

K. and that he would not, nor did he, harm her with the knife. [ 25 ] Mr. Pennington, with those circumstances in mind and Mr. Samoleski's background, suggests that first of all Mr. Samoleski would benefit from a federal sentence in terms of the resources that would be available to him.

Knowing that a jail sentence is inevitable here, he suggests that the Crown's position of three years is at the upper range and that something between two to three years would be appropriate. [ 26 ] I should note because this matter has been dealt with so quickly, counsel on behalf of the Crown has not provided a victim impact statement from Ms. K. Mr. Seagram advised that he spoke with Ms. K.'s co-workers at the store and that they have advised that this past Friday evening, after this incident occurred, that Ms. K. was unable to sleep at all. She kept seeing the robber's face in her mind.

She was described as being very frightened and now when customers walk in wearing hoodies she is upset and jumpy. [ 27 ] Mr. Seagram, on behalf of the Crown, also reminds the court to consider that with respect to this type of robbery occurring in a small grocery or convenience store, that Ms. K. working alone was particularly vulnerable and the store itself was a vulnerable target. [ 28 ] I have had the opportunity to consider the matter before me today. There are aggravating circumstances with respect to this matter. There is an aspect of planning to this offence given Mr.

Samoleski's comments to his co-workers earlier that morning with respect to a knife and wanting desperately to get drugs. As I just noted a moment ago, there is an element of vulnerability to this particular victim, albeit I do certainly note that this was a daytime robbery. [ 29 ] Mr. Samoleski's offence was motivated by drugs. That is a matter that I think the court can consider both aggravating and mitigating. Mr. Samoleski was armed with a knife when he committed this robbery.

He was on probation for a number of offences at the time this instance occurred and he has two prior convictions for violence, albeit one as a youth, but a conviction as an adult for robbery for which he received a federal sentence of twenty-seven months in 1990. [ 30 ] Mr. Samoleski has a significant record otherwise for property related crimes and convictions as well for non-compliance with court orders, including his convictions in March and April of last year for escape.

[ 31 ] There are mitigating circumstances, however. Mr. Samoleski has, by all accounts, pled guilty at the absolute earliest possible opportunity and to a most serious offence. He has cooperated with the police since his arrest in this matter. His commission of the robbery has a desperate component to it. The fact that he was wearing such readily identifiable clothing and his glasses also suggests that, although there was some planning involved, that it was not particularly well planned and it was almost inevitable that he would be caught, being a resident of Penticton, with the video tape running. [ 32 ] Mr.

Samoleski as well has had a significant drug problem and he was obviously battling that and in the throws of that the date this offence occurred. [ 33 ] Balancing both the mitigating and aggravating circumstances and bearing in mind the principles and purposes of sentencing as set out in the Criminal Code , I have considered that an appropriate disposition and the disposition with respect to this matter will be as follows: [ 34 ] Mr. Samoleski, would you stand please. Sir, the last time that you committed an offence of robbery was in 1990. That led to a twenty-seven month sentence.

If this matter had been something that had proceeded to a trial, it would seem to me that the court would have looked at a significantly greater period of federal time. The early guilty plea is a significant mitigating factor but this is now your second robbery. It was a robbery while armed with a knife, albeit shown and not utilized otherwise. [ 35 ] I have determined that an appropriate sentence would be one of three years federal time. I have determined that it would not be appropriate to make a federal sentence less than that.

It would not properly reflect the serious nature of this offence and the fact that this is a second conviction of this nature. So three years will be the sentence. [ 36 ] I am required under

Section 109 of the Criminal Code to impose a mandatory firearms prohibition. Given that this is an offence to which the offender is punishable up to a sentence of life, in the result, Madam Registrar, there will be a ten year prohibition order prohibiting Mr. Samoleski from possessing any firearms, crossbows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition and explosive substances. [ 37 ] There will be a further order under

Section 109 that Mr. Samoleski be prohibited for life from possessing -- I am sorry, just give me one moment please -- any prohibited firearms, restricted firearms, prohibited weapons, prohibited devices and prohibited ammunition. [ 38 ] Mr. Pennington, I have not heard any submission from you with respect to the DNA request by the Crown. This is a secondary designated offence. [ 39 ] MR. PENNINGTON: Yes. I have no submission. [ 40 ] THE COURT: Thank you. I have considered that application on behalf of the Crown.

Because this is a secondary designated offence, I need to determine in the balance certain things as regards -- Mr. Samoleski's background, his criminal history, the nature of this offence and determine whether it would be in the best interests of the administration of justice to direct that Mr. Samoleski be required by law to provide a sample of his DNA. [ 41 ] With his record and with these circumstances, I am very quickly able to determine that it would be in the best interests of the administration of justice and I make that order. [ 42 ] Mr.

Samoleski is going to be in prison for three years by way of this offence. Mr. Seagram, it seems to me that the sheriffs or the corrections authorities, they would have ample opportunity to take that sample. Do you wish me to make any further direction in terms of the timing of that or the logistics? [ 43 ] MR. SEAGRAM: I am just reviewing the relevant sections and I do not think you need to, Your Honour. Given that he is in custody, the Code requires that it be taken as soon as feasible after the authorization is made.

The sheriffs prepare the orders for signature and the police will get them forthwith. [ 44 ] THE COURT: Thank you. (EXCERPT CONCLUDED)