R. v. Beaulieu, 2023 MBPC 24

2023 MBPC 24 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE B E T W E E N: ) ) HIS MAJESTY THE KING, ) Samuel Levkov - and – ) ) ) for the Crown FRANCIS BEAULIEU, ) ) ) Jeremy Kostiuk accused. ) ) ) ) for the Accused ) Reasons for Sentence: ) May 25, 2023 BAYLY, P.J. Introduction [ 1 ] After a trial in Provincial Court, I convicted Francis Beaulieu (the Offender) of robbery using a firearm, pointing a firearm, possession of a firearm knowing that its possession is unauthorized, possession of a firearm contrary to a prohibition order and possession of a weapon for a dangerous purpose.

Those convictions stem from his role in the August 9, 2021 robbery of the Silver Ridge Gas Station in the R.M. of Alonsa, Manitoba. R. v. Beaulieu 2023 MBPC 21 refers. [ 2 ] The sentence hearing was delayed as the offender requested the preparation of a pre-sentence report with a Gladue component (the PSR), which is exhibit S1 in these proceedings.

S2, a second sentencing exhibit was filed by consent; it includes the victim impact statement of Hung Jun Chen, a copy of a release order imposed on July 30, 2021 by a Provincial Court Judge, a transcript of the previous armed robbery conviction from July 16, 2018 and five incident reports from Manitoba Corrections. [ 3 ] The issue to be determined is this: What is a fit and appropriate punishment is for Francis Beaulieu.

Circumstances of the Offence [ 4 ] The evidence at trial satisfied me beyond a reasonable doubt that on August 9, 2021 at approximately 2:40 in the afternoon, the offender, his co-accused Anton Levasseur and a third individual, each acting in concert with one another, robbed the Silver Ridge Gas Station at gunpoint. The ‘Silver Ridge’ is both a gas station and a convenience store and has video surveillance cameras installed both inside and outside of the premises.

[ 5 ] From the outdoor video surveillance, it was apparent to me, that the three men arrived together in a Ford Taurus, the co- accused Anton Levasseur was driving the vehicle, he was not armed with a firearm. The offender, armed with a large caliber rifle, determined to be a 30/30 non-restricted rifle exited from the rear of the Taurus. The third male also armed with a smaller calibre rifle also exited from the Taurus. As the armed men rushed out of the vehicle, Mr. Chen and his employee Gordon Ross react by fleeing. Mr. Chen ran into his store while Mr. Ross attempted to leave the scene entirely. As Mr.

Chen runs towards his store, the video shows the offender point his firearm in the direction of his fleeing victim. [ 6 ] From the video surveillance inside the store, it was apparent to me that as Mr. Chen ran inside his business, he was frantic. He tried to pull the main door closed but was unable to do so before the offender rushed inside, followed closely by the third male. Mr. Chen had his hands up and took what I describe as a submissive and cowering position. The offender follows Mr. Chen as he moves behind the payment counter towards the cash register.

The third male at this point has taken up a position in front of the entry and is pointing his firearm wildly around the store. This male also points the firearm at Mr. Chen on multiple occasions. [ 7 ] Mr. Chen is complying with the offender; he hands over the money tray for the cash register and points to a drawer containing cigarettes. Despite this compliance, the offender is behaving aggressively; throwing items around, banging the floor area just behind the cash register and at one point, he punches Mr. Chen in the throat or upper chest area. As the offender steals Mr.

Chen’s property, he hands it over to his co-accused who then removed it from the store and placed it into the getaway vehicle. [ 8 ] I have no difficulty concluding, that the offender was the individual who was in charge inside the Silver Ridge Gas Station at the time of the robbery. The offender subdued Mr. Chen, collected the stolen items, and then passed them over to his accomplices. No one other than the offender physically assaulted Mr. Chen. Mr.

Beaulieu was a principle actor in this armed robbery. [ 9 ] The third male was acting primarily as ‘crowd control.’ At one point, he exited the store and brought the employee, Gordon Ross, back into the store, at gunpoint. This male also had a hand in removing some of Mr. Chen’s property from the scene. [ 10 ] Anton Levasseur was primarily the getaway driver. He was unarmed; at no time did he go behind the checkout counter. He appeared to be primarily responsible for receiving the items taken by the offender and placing them in the getaway vehicle.

In total, the robbery lasted 1 minute and 45 seconds. [ 11 ] A short time after the robbery, the offender, Anton Levasseur and the third male are arrested. Upon the offender’s arrest, he is in possession of the 30/30 rifle, the same one used in the robbery. When the firearm was seized, there was a bullet in the chamber and a magazine with readily accessible ammunition recovered close by. He was located beside two bags which contained merchandise stolen from the robbery including personal documents belonging to Mr.

Chen. [ 12 ] The Crown urged, but the Court declines to conclude as fact that because the firearm was loaded when seized by RCMP, that it also must have been loaded when used during the robbery. I am not satisfied that the evidence adduced at trial supports such a finding beyond a reasonable doubt. This point aside, I am of the view that this robbery was a brazen, planned, premeditated serious violent offence. [ 13 ] The Crown provided the Court with Victim Impact from Hung Jun Chen. Mr. Chen advised that he has suffered emotionally in the following ways.

That since the robbery he has had difficulty sleeping and has required medication to sleep. That when he does sleep, he suffers from nightmares. He advised that his wife and son are afraid to work in the store and that he too is fearful when working alone at night. Mr. Chen says that his family wants him to sell the business and move back to China. In terms of a financial loss, he estimated his lost revenue at $3000.00, as he had to close down for the remainder of the day.

Additionally he had to pay $1000.00 insurance deductible and $2000.00 for a new cash register. [ 14 ] The Court recognizes the significant impact that this crime has had on Mr. Chen and his family. This is a small family run business in a remote rural area of the Province. Both Mr. Chen and his employee were vulnerable because of both the remote location of this business and by virtue of the fact that the business holds large amounts of cigarettes, lottery scratch tickets and cash that make it an easy target for criminals.

The profit margins are undoubtedly slim and I conclude that the loss suffered was a significant one for this small business. Circumstances of the Offender [ 15 ] The offender’s personal circumstances are detailed in the PSR. He a 33-year-old indigenous male from the Sandy Bay First

Nation. He was assessed as a very high risk to re-offend by the author of that report. His risk factors include a negative attitude and a demonstrated pattern of criminal orientation; he aligns himself with negative peer groups, suffers from low levels of education, a chronic lack of employment and substance abuse. [ 16 ] It was my observation from the PSR that the offender tends to externalize blame and feels that he is treated unfairly by the criminal justice system because of the colour of his skin.

He has had extensive exposure to Probation Services and has demonstrated through the years an unwillingness to comply with Court ordered probation conditions. Additionally, he is described as being disrespectful to his current probation officer. [ 17 ] During his meeting with the PSR author, the offender described himself as a model inmate and has been participating in programing while in custody. The author of the PSR indicated that neither of those representations were accurate.

In terms of his adherence to his correctional plan while in custody, his assigned correction officer advised that PSR writer that despite numerous conversations about the need to engage, the offender indicated that he is not interested and that he just wants to do his time. [ 18 ] In terms of his upbringing, the offender advised that his father left the family home when he was only 8 years old. The offender at the time blamed his mother for this but recognized, as he grew up, that his parent’s relationship was not a healthy one.

He advised that both parents exposed him to alcohol and drug use in the home as he grew up. By the age of 13, he began using alcohol recreationally and often drank to intoxication. Then in his teen years, he advised that he was drinking everyday. The accused recognizes the negative impact that alcohol has had on his life, blaming it for his failure to advance beyond grade 9 in high school and for becoming involved with a peer group that exposed him to criminality.

The offender advised that he began to abuse prescription mediations and illegal substances like cocaine and by 25-years-old, he had developed an addiction to methamphetamine. [ 19 ] In terms of his indigenous heritage and culture. The offender advised that when he is in the community, he regularly attends Pow Wow ceremonies and that while in custody, he plans to participate in a Sweat Lodge Ceremony. During his formative years, his father and his father’s family taught him to hunt, fish and trap.

While in custody, he registered in the “Reclaiming our Identity” program but ultimately refused to attend because the course material dealing with colonization made him angry. [ 20 ] I am satisfied that the offender and his family have been significantly impacted by this country’s shameful legacy of colonization, including some of his family members being forced to attend residential schools. His exposure to substance abuse, his addictions and instability in his family home growing up, including the break down of his family unit are a direct result of that legacy.

Many of his family members are involved in the Criminal Justice System. He asserts as well that he experienced abuse and racism growing up. Sadly, he experienced the loss of his wife to suicide while he was in custody in 2019. [ 21 ] In terms of his prior involvement with the Criminal Justice System. He has 21 youth convictions between July 2005 and October 2007, most were property related offences, some were breaching court order offences and a few were flight from police and escape lawful custody. [ 22 ] The offender has 33 adult convictions between July 2009 and February 2021.

In those 12 years, he has only one drug conviction, nine convictions for disobeying court orders, six convictions for violence, including two assault with weapons and a prior robbery. He has five prior convictions for weapon possession, including two prior convictions for possess firearm while prohibited, one prior conviction for possess of a firearm knowing its possession is unauthorized. He has eight convictions for property offences including a conviction for arson.

He has four prior convictions for motor vehicle offences, including two convictions each for driving dangerously and flight police officer. [ 23 ] The offender has received sentences involving periods of probation, both short and long periods of provincial custody. The accused prior conviction for robbery resulted in a sentence of 18 months of time in custody with 9 months going forward (July 16, 2018) and of note, on February 17, 2021, the Offender was convicted of possession of a weapon, possession of a firearm, knowing its possession is unauthorized and possession of a firearm contrary to a prohibition order.

He was sentenced to 5 months and 20 days going forward from time in custody credited as 459 days. He would only have been just released from custody when he became involved in the index offence. Sentencing Principles [ 24 ] The sentencing of an offender is an individualized process that requires the balancing of many factors.

Section 718 of the Criminal Code specifically directs sentencing judges to consider that the fundamental purpose of sentencing is "to contribute … to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.” A sentence must be

proportionate to the gravity of the offence and the degree of responsibility of the offender (

section 718.1 of the Criminal Code ). [ 25 ] The case law submitted by counsel demonstrates that robbery is a serious offence. While not provided by counsel, the Manitoba Court of Appeal decision of R. v. Dalkeith-Mackie , 2018 MBCA 118 , is of significant guidance. [ 26 ] Justice LeMaistre speaking for the Manitoba Court of Appeal in R. v. Dalkieth-Mackie at paragraphs 17-21 summarized many of the leading decisions. 17.

Sentencing ranges and starting points are intended to assist sentencing judges in applying the principles of sentencing “by guiding the exercise of that discretion” ( R v Lacasse , 2015 SCC 64 at paras 2 , 57). … 18.

In Charlette ( cited at 2015 MBCA 32 ), Hamilton JA considered the starting point when sentencing for armed robbery and concluded (at para 46): In other words, the starting point for a judge’s analysis when sentencing an offender with no previous criminal record for robbery of a taxi driver when armed with a weapon is a sentence between two and four years, depending on the circumstances of the offence and the offender, unless there are mitigating factors that call for an emphasis on rehabilitation rather than deterrence, denunciation and protection of the public. 19.

In Okemow, Mainella JA explained that the two to four-year starting point is not limited to cases involving taxi drivers (at para 112): An armed robbery of a 24-hour retail location, such as a convenience store, gas station, pharmacy or fast-food outlet, is aggravating because the workers in those stores are vulnerable. They are often working alone and are in possession of cash or other valuable items, such as cigarettes. As Carlson PJ noted in R v Mandzuk, 2007 MBPC 34 , such locations are “soft targets” and the victims of such robberies “are deserving of special protection of the law” (at para 34). 20.

The two to four-year starting point presumes a mature accused with no criminal record and prior good character, and is adjusted for any relevant aggravating or mitigating circumstances relating to the offence or the offender ( see R v JRA , 2012 MBCA 48 at para 5 ). 21. In light of the serious nature of the offence of armed robbery and the fact that “[i]t is, unfortunately, a common crime . . . it is well accepted that the sentencing objective of general deterrence is of paramount importance” ( Okemow at para 111).

This requires a sentencing judge to “focus . . . more on an offender’s conduct than any circumstances particular to that offender” ( R v McMillan (BW), 2016 MBCA 12 at para 12 ). [ 27 ] Robbery is an inherently violent crime. Individuals who work in commercial settings should not have to be afraid that a member of the public might walk into their place of work, armed with what they believe to be a real gun and act in a threatening manner. Sentences for such random offences with innocent, random victims must be significant to achieve the goals of denunciation, general deterrence, and specific deterrence.

Aggravating Features [ 28 ] In terms of the aggravating features of this case, there are a great many. As indicated, this was a well-planned and premeditated robbery. Mr. Chen is a vulnerable victim. The offender concealed his identity with a mask and carried himself in an excessively aggressive and threatening manner. He brandished the firearm and pointed it at Mr. Chen. He assaulted Mr. Chen. He has a prior conviction for armed robbery, had just been released from custody for firearms offences, was on Probation and was on bail at the time of the offence.

The offender has a continuous and unbroken criminal record that spans 20 years, with over 50 prior convictions. Despite having received sentences in the past intended to assist him in his rehabilitation, he has chosen to resist the assistance of probation services and has remained criminally entrenched. The accused is a very high risk to reoffend. Mitigating Features [ 29 ] In terms of mitigating factors, there is nothing about the offence or the way in which it was committed that is mitigating. The

offender however has a personal circumstance that is very sympathetic. Defence counsel’s submission that the accused “inherited his risk factors from this country’s legacy of colonization” is as accurate as it is sad. It was a very compelling observation and one I agree with. The offender’s struggle with alcohol addiction and substance abuse, his exposure to his parents’ substance abuse growing up, lead me to conclude that he is been deeply impacted by the legacy of colonization and the residential school system. I conclude that his moral culpability is diminished by these facts.

Decision [ 30 ] Sentencing is more art than science. When done correctly, an appropriate sentence strikes a balance between two competing considerations: the seriousness of the offence and the moral culpability of the offender. [ 31 ] The Manitoba Court of Appeal has established a clear starting range for individuals convicted of armed robbery that range, assuming no prior criminal record, prior good character and a victim who is vulnerable is between two to four years. I recognize that appellate court starting points are non-binding guidance for lower courts. ( See R. v.

Parranto 2021 SCC 46 (at para 3 )) I, nonetheless, find the range analysis to be quite instructive. In my view, there is significant value in respecting the ‘starting point’ or ‘range’ type of analysis. I see them as useful tools designed by appellate courts to reduce arbitrariness and disparity in sentences for similar offences imposed by lower courts. They also maintain the public’s confidence in the administration of justice by ensuring parity. [ 32 ] Another aspect of parity requiring consideration is the sentence imposed on the co-accused.

The Crown advised the Court that Anton Levasseur entered a guilty to the offence of robbery. He received a sentence of 5 years less his time in custody on the robbery offence. This was on a joint recommendation. [ 33 ] I have considered whether the principle of parity requires that I impose a sentence of 5 years on Mr. Beaulieu. In my view, it does not. The Manitoba Court of Appeal decision in R. v.

Gladue 2018 MBCA 89 states at paragraph 15 : While it is incumbent on a sentencing judge to consider the principle of parity, it cannot eclipse other relevant sentencing principles. … The principle of parity is not absolute and a disparate sentence will not violate the parity principle as long as it is warranted.

As noted by the sentencing judge, the principle of parity also involves parity among the broader spectrum of similar offenders who have committed similar offences. [ 34 ] As outlined above, the respective roles played by Anton Levasseur and Francis Beaulieu are a fundamental distinguishing feature between these two offenders. Mr. Levasseur’s involvement and role was much less and his culpability attached as a party. He never touched a firearm and he never assaulted the victim. His sentence was the product of a joint recommendation before trial, a significant mitigating feature not present in Mr.

Beaulieu’s circumstance. Parity with the co-accused does not eclipse the important principles of denunciation and deterrence. [ 35 ] I have also considered whether the sentences imposed on this offender should be concurrent or consecutive to one another. The decision to impose concurrent or consecutive sentences is largely a discretionary one. As I understand, sentences ought to be consecutive to one another unless there is a reasonably close nexus between the offences. That nexus can exist if the offences occur at the same time and place or if they are part of a continuing criminal operation or transaction.

That said, even if such a nexus exists, in my view it is appropriate to impose consecutive sentences for offences that do not share the same gravamen. See for example R. v. DC 2016 MBCA 49 where the Manitoba Court of Appeal recognized that offences that involved the making and distributing of child pornography are distinct from invitation to sexual touching offences even though they arose out of the same criminal transaction. [ 36 ] When the essence of an offence is different, a consecutive sentence can be imposed to address the separate and distinct harm to the victim and society.

In the final assessment, whether sentences are concurrent or consecutive, it is important to ensure that the sentence achieves the goal of proportionality. [ 37 ] Justice Mainella explained the proper procedure in R v RJ , 2017 MBCA 13 to ensure a proportional result, if the sentences are concurrent, the total sentence imposed must be equal to the harm done – there are no free rides. If the sentences are consecutive, the total sentence imposed must respect the principle of totality; it must not be harsh or excessive in the circumstances of the case.

[ 38 ] The defence seeks the imposition of a 5year sentence. Defence counsel was clear in his submission, that in his view, while denunciation and deterrence are clearly the primary sentencing objectives, it is incumbent on the Court to exercise restraint. Defence argued that the starting point of the proportionality analysis should be the sentence imposed on the prior robbery conviction. Defence reminded the court, that the offender is an indigenous man who is deeply impacted by this Country’s history of colonization. That the cases argued by the Crown, R. v. Steel 2013 MBQB 219 and R. v.

Lira 2021 ONSC 8294 while sharing some similarity to the offender’s situation, are different in some very important respects, namely that the ‘cumulative criminal conduct’ of those offenders is far more severe than in the offender’s case. [ 39 ] While I agree with aspects of Defence counsel’s argument. I nonetheless conclude that because the offence committed by Mr. Beaulieu is so serious and his moral culpability remains very high that the punishment imposed needs to be significant and it needs to make an example of Mr. Beaulieu.

Protection of the community, denunciation and general deterrence need to take centre stage in this sentencing proceeding. I am not of the view that rehabilitation is a primary objective in this case or that Mr. Beaulieu has demonstrated through previous sentences imposed a willingness to participate in his own rehabilitation. [ 40 ] I conclude that a combination of concurrent and consecutive sentences are required to hold this offender accountable.

In my view the offences of robbery with a firearm, pointing a firearm and possession of a weapon for a dangerous purpose all form a part of the same criminal transaction. The remaining offences, possession of a firearm knowing its possession is unauthorized and possession of a firearm contrary to a prohibition order, are similar to each other in terms of their gravamen, but are distinct from the robbery offence.

The harm caused to society by those who commit a robbery or who arm themselves for that purpose is distinct from the society’s interest in prohibiting people from possessing firearms who are not qualified, competent or those who do not possess the appropriate temperament to hold firearms. [ 41 ] I impose the following sentence. On the robbery with a firearm offence, in light of the jurisprudence, the prior conviction and the aggravating circumstances, the sentence is - 8 years. On the point firearm offence, I impose a sentence of 2 year, concurrent to the robbery.

On the possess weapon for a dangerous purpose offence, I impose a sentence of 1 year, concurrent to the robbery. [ 42 ] On the possession of firearm, knowing its possession is unauthorized offence, in light of the recent and related conviction for this offence, I impose a sentence of 2 years consecutive to the robbery. On the possession of firearm contrary to prohibition order offence, I impose a sentence of 2 years concurrent to the unauthorized possession offence, but consecutive to the robbery offence. [ 43 ] The total sentence imposed is 10 years.

In light of his reduced moral culpability and bearing in mind, the need to take one last look at the sentence imposed to ensure that it is not unduly harsh or excessive. I have concluded that a totality reduction of 1 year is required. [ 44 ] The sentence for the robbery offence is reduced from 8 years to 7.5 years and the possession of a firearm offences are reduced from 2 years to 1.5 years consecutive. The total sentence imposed is 9 years. I am prepared to credit Mr.

Beaulieu for his time in custody 507 days enhanced to 761 days, expressed as 2 years and 1 month. 9 years less TIC of 2 years and 1 month leaves a go forward sentence of 6 years and 11 months. [ 45 ] In addition to the custodial portion of this sentence, I am imposing the following ancillary orders; a mandatory DNA order on the robbery offence within 30 days pursuant to

section 487.51 of the Criminal Code . A lifetime weapons prohibition pursuant to

section 109 of the Criminal Code , Forfeiture of items seized pursuant to

section 490.1 and 491(1) of the Criminal Code . Pursuant

section 743.21(1) of the Criminal Code , I make a non-communication order with the following individuals Victor Levasseur, Hung Jung Chen, Gordon Ross and Loretta McIvor. Finally, pursuant to

section 738 of Criminal Code , I make a stand-alone restitution order in favour of Hung Jun Chen for $2000.00. Costs and Surcharge are waived. __” original signed” ______ BAYLY, P.J.