Her Majesty the Queen - v. -, 2013 SKPC 89

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 089 Date: May 24, 2013 Information: 24179210 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Rodney Hanishewski Appearing: Darren Grindle For the Crown Michael Nolin For the Accused JUDGMENT P. KOSKIE , J [ 1 ] An Agreed Statement of Facts was filed in this case and they are as follows. I have changed the order of the facts and nothing more. [ 2 ] Greg Bugeria was born on November 15, 1962. At the time of the offence, he was 48 years of age.

[ 3 ] Rodney Hanishewski was born on October 19, 1965. At the time of the offence, he was 45 years of age. [ 4 ] Greg and Rodney have known each other more or less their entire lives. [ 5 ] On July 27, 2010, Greg Bugeria (hereinafter “Greg”) was swathing hay on a quarter

section of land owned by Clarence Hanishewski located at NE-09-33-07 W2. This land is located in the Rama District, Saskatchewan. [ 6 ] Greg and Clarence Hanishewski had known each other more or less their entire lives, having grown up in neighbouring farm yards in the Rama District. [ 7 ] On July 27, 2010, Clarence resided in Warman, Saskatchewan, while Greg resided on his home quarter, which is adjacent to the NE-09-33-07 W2. [ 8 ] While haying, Greg was operating a 1076 1175 Case tractor, pulling a mower conditioner. Greg was traveling at a speed of three to four (3-4) miles per hour while haying.

The land he was haying was wet and muddy due to recent rains. On the date in question, Greg started haying at approximately 4:30 p.m. [ 9 ] On July 27, 2010, at around 7:00 p.m., Rodney Hanishewski (hereinafter “Rodney”) saw Greg swathing hay on Clarence’s land. Rodney then drove to a residence he shared with his mother, Helen Hanishewski, and his sister, Mary Anne Hanishewski.

When Rodney arrived, Helen and Mary Anne were inside the residence. [ 10 ] Rodney entered into the residence; appeared to look for something and left the residence shortly thereafter, saying something to the effect that “I’m going to go kill the neighbour” Rodney drove off in his black Pontiac Grand Am. [ 11 ] Rodney drove and parked his vehicle on a gravel roadway adjacent to the land Greg was swathing. While swathing, Greg was able to see a vehicle parked on the roadway and as he got closer, Greg noted that it was Rodney’s black Pontiac Grand Am.

As Greg got closer he noted a lone male sitting in the driver’s seat. [ 12 ] As Greg continued swathing in a direction towards the car, He is approximately 200 feet from the Grand Am when he hears a sound equivalent to a gun going off. The next thing Greg sees is the front window of his tractor smashing and he is hit in his left shoulder.

Greg looked at his shoulder and noted a piece of his left shoulder missing, blood flowing from his left shoulder and blood splattered throughout the tractor cab. [ 13 ] Rodney continued to discharge a firearm towards the tractor as Greg attempted to drive away on the field away from Rodney’s location. It is estimated Rodney shot at Greg ten (10) times, utilizing two different firearms. Approximately nine (9) shots hit the tractor Greg was driving. The shooting took place over a three to six (3-6) minute time period and occurred at approximately 7:15 p.m.

Rodney was seated in the driver’s seat of his vehicle while he was shooting at Greg. [ 14 ] At one point Rodney drove his vehicle onto the land Greg was swathing in an attempt to follow him. As a result of the mud on the field, Rodney quit following Greg and returned to his residence. Helen Hanishewski and Mary Anne Hanishewski were still in the residence. Mary Anne estimated that Rodney returned to the residence approximately 10 to 15 minutes after leaving previously. [ 15 ] After Rodney left, Greg was able to use his cell phone to contact some neighbours and family for help.

The RCMP and medical personnel were also dispatched and attended to the scene. [ 16 ] Greg received injuries to his shoulder. Cuts to his face, arms and lower back. He was initially taken to the Canora Hospital and then transferred to the Regina General Hospital for surgery. Greg’s victim impact statement set outs the injuries he suffered and the effects of same on him. (I will deal with this aspect later on in this judgment.)

[17] On July 28, 2010, near Warman, Saskatchewan, at approximately 3:45 a.m., Rodney was arrested by Warman RCMP andtaken into custody. Rodney has been in custody since this date. [18] At the time of his arrest, Rodney was driving his black Pontiac Grand Am. In the trunk of his vehicle, police discovered andseized two firearms with ammunition:

a) A pump-action shotgun, make Lakefield Mossberg, model 400G, 12 gauge, serial number G417001: and

b) A pump action rifle, make Remington, model Six, caliber 30-06 Springfield, serial number A4024606. [19] The above firearms were utilized by Rodney on July 27, 2010 to shoot at Greg. Both firearms are able to cause death. At closerange, the shotgun is quite destructive. The Remington 30-06 is a high powered rifle capable of firing bullets at high velocities with thepotential of causing extremely severe wounds. Law [20] A number of cases were filed on behalf of the Crown. I have reviewed them all and I was presented with a sentencing rangefor this offence of four (4) years to life.

In this particular case, the Crown has suggested a seven to nine (7-9) year sentence whereas theDefence counsel has suggested a five to seven (5-7) year sentence would be appropriate. [21] I believe the quote of Judge Trottier of the Ontario Superior Court of Justice in Ljeskovica, 2008 O.J. No. 4935, at paragraph14-16 is very appropriate: 14 Attempted murder is one of most serious offences known to our law. Historically, the Courts have often imposed sentences forattempted murder that are more severe than cases of manslaughter.

This is due to the singular importance that the law ascribes to aperson's intention to kill another human being. This point was emphasized by Chief Justice Lamer in Regina v. Logan (1990), (SCC), 58 C.C.C. (3d) 391 (S.C.C.), a case that concerned the constitutionality of the fault requirement for attempted murder.In justifying the requirement of a subjective standard, comparable to that required for murder (see Regina v.

Martineau, (SCC), [1990] 2 S.C.R. 633), the Chief Justice stated at pp. 399-400: Quite simply, an attempted murderer is, if caught and convicted, a "lucky murderer." The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that although nodeath ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less akiller than a murderer: he may be lucky -- the ambulance arrived early, or some other fortuitous circumstance -- but he still has the samekiller instinct.

Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence ispunishable by life and the usual penalty is very severe. 15 More recently, and in the context of sentencing, Doherty J.A. expressed a similar view in Regina v. McArthur (2004), (ON CA), 182 C.C.C. (3d) 230 (Ont. C.A.), at p. 241: Under our law, a person can only be convicted of attempted murder if he or she intended to kill. The moral culpability of the attemptedmurderer is at least equal to that of a murderer.

He or she avoids a murder conviction and the automatic sentence of life imprisonmentnot because of any mitigating factor, but because through good fortune, the victim was not killed. A conviction for attempted murder will almost inevitably result in a lengthy penitentiary term. 16 Even with this prescription in mind, there is still a wide range of sentences for attempted murder. The intent to kill is the only fixedvalue in these cases; there are many other variables that must be considered in determining the appropriate sentence.

Attempted murdercases span from those where no injury is caused to the victim (i.e., the bullet that misses the target or the gun that malfunctions), to thosewhere the injuries are grave and long lasting. For instance, see the shocking case of Regina v. M.D., [2005] O.J. No. 2541 (S.C.J.), inwhich both of the victim's hands were severed by a machete. Similarly, some attempted murder cases follow complex planning anddeliberation (see Regina v. Denkers (1994), (ON CA), 69 O.A.C. 391 and Regina v. Schroeder, [2004] O.J. No. 6231(S.C.J.)), while others are more impulsive. [22] I have reviewed the case of R. v.

Carelse,

(2013) S.J. No. 40, written by Mr. Justice Danyliuk of our Court of Queen’s Bench,who does a thorough review of the law of attempted murder and sentencing factors and principles which I have paraphrased in this

judgment. [23] The applicable sections of the Criminal Code, R.S.C. 1985, c. C-46, are as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a 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 a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. ... 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [24] This case has several mitigating factors which are as follows:

a) No prior criminal record.

b) Mr. Hanishewski pled guilty thereby sparing the victims of this offense from having to testify which after reviewing thevictim impact statements would have re-victimized these individuals.

c) Mr. Hanishewski has been a model prisoner since being arrested on July 28, 2010.

d) Mr. Hanishewski is suffering some mental health issues. [25] This case has several aggravating factors which may be summarized as follows:

a) Denunciation and deterrence are key factors in this type of offense

b) The overarching purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safesociety. [26] Judge Halliday in R. V. B.C.F., 2008 SKPC 98 , 2008 S.J. No. 510, at paragraph 43 stated as follows: We live collectively and can ill afford to become numb to violence. The Court’s response must truly reflect the value and sanctity of ourlives. The response must clearly demonstrate the value of our emotional and physical integrity.

It must respond to the enormity of theharm caused out of a specific intent to kill…”There must be a sanction proportionate to the Accused’s violation of what we hold preciousbeyond measure namely life. In other words how does this sentence serve to contribute to respect for the law and the maintenance of a just, peaceful and safe society? [27] Justice Danyliuk, in R. v. Carelse, supra, stated it as follows: “Proportionality is a key concept. This sentence must beproportionate to two things. One is the gravity of the offence. This Court's view is that this offence is grave indeed.

As well, it must beproportionate to the responsibility of the offender.”

[ 28 ] Mr. Hanishewski has accepted responsibility for his actions. He does not have full insight into the effect his actions had on other individuals. [ 29 ] In this regard he is not truly remorseful as evidenced by the latest psychiatric report which states as follows: Mr. Hanishewski appears to be manifesting features of a paranoid personality disorder. The main features of this disorder include pervasive distrust and suspiciousness of others, excessive hostility, holding grudges against others, being rigid, seclusive, unforgiving and stubborn.

He feels he has been treated unfairly by his brother and the rest of his family. Individuals with paranoid personality disorder may experience brief psychotic breakdowns under stress individuals like this patient who are paranoid, resentful and angry may resort to violence against those they believe are hurting them. Unfortunately the paranoid personality disorder is a chronic condition is quite likely this patient will continue to feel there is a conspiracy against him for many years to come. Mr. Hanishewski has exhibited other risk factors including impulsivity alcoholism, and lack of social support.

In my opinion Mr. Hanishewski’s risk to reoffend violently against either his older brother or some other individual is quite significant. In addition he may become actively suicidal. As mentioned above the patient has very limited insight into his psychiatric condition and in fact he was not willing to be treated with an antipsychotic medication to control some of his paranoia and persecutory ideas. [ 30 ] Mr.

Hanishewski case is complicated by his mental health issues however, even after committing this violent action he is not prepared to get full treatment for his mental health issues thereby leaving him as a danger to others unless he at sometime in the future accepts such treatment. I must take him as I find him. [ 31 ] Finally, the deliberate nature of the commission of this offense is chilling. He had to aim fire then grab a different gun and aim and fire again then reload both weapons until at least 10 shots were fired into a slow moving tractor.

The imagery of a duck at a carnival is both accurate and chilling. I can’t imagine the terror Mr. Bugiera felt for that three to five minute window. The manner in which this offence was carried out was not a spur of the moment, quick decision but rather deliberate and purposeful as contrasted with the stabbing case filed for my consideration. [ 32 ] I wish to review and summarize the Victim Impact Statements for Mr. Hanishewski to reflect upon.

a) Marie Bugiera [ 33 ] She went from not knowing whether or not her husband was alive, and in complete dread of how she would tell her children to then being concerned about how Greg’s injuries would effect their livelihood as active farmers. This action has left huge, deep, permanent scars on Greg, her family and herself. [ 34 ] She used a lot of sick time and was put on a temporary watch list by her employer monitoring her sick time. Thereby being punished again for this incident and her reduced hours worked resulted in reduced accrued benefits. [ 35 ] Personally her world has been turned upside down.

She is terrified to leave Greg alone, afraid to be alone, they now lock their doors and she is hyper sensitive to her surroundings. [ 36 ] She experiences panic attacks, headaches, eye twitching, sleep disturbance, depression, guilt, and anger, rage, and mood swings. She is no longer a trusting person.

[ 37 ] In conclusion, it has effected her family every day, in some way since it has occurred and she cannot understand how anyone could knowingly and purposely cause such pain and suffering to another human being. The life they have worked so hard to build over the last 25 years has been turned on its head.

b) Greg Bugiera [ 38 ] Physically: the gunshot wound to his left shoulder removed 6 inches of his shoulder bone and all the muscle around the injury. In addition Greg lost 2 ½ units of blood, encountered complications in the way of blood clots and has lost a large amount of mobility in his left shoulder and arm.

Greg continues to have bone and bullet fragments throughout his shoulder chest and arms and suffered a great deal of pain as result of the injuries. [ 39 ] It required 14 months of physiotherapy to regain some mobility and strength and it prevents Greg from doing everyday working activities [ 40 ] There still remains metal and glass particles in his body that are working their way to the surface which has resulted in great pain and discomfort for Greg when lying on his back or sitting in certain positions. [ 41 ] Financially: the tractor that Greg was driving was written off by the insurance company and was underinsured which resulted in a big loss.

As a result of the many medical appointments Greg has been off work for a great deal of time and will no longer carry out off farm jobs such as truck driving, custom repair work and receive no compensation for this lost income and lost ability to earn more income as a result of his injuries. [ 42 ] Emotionally: Greg suffers from nightmares reliving the whole event which have caused many unwanted feelings including hate, fear, distrust, guilt, anxiety, loss of self-confidence, shame and insecurity.

He has become cautious and suspicious to the point of being paranoid and feels that his personal security and privacy has been taken away forever. He believes he will be required to move in the event that the accused is released because he could never feel safe or comfortably or at peace in order to accomplish any of the necessary jobs required on his farm knowing that Mr. Hanishewski is nearby. [ 43 ] Ultimately, Mr. Hanishewski’s release would require Greg and his family to move from a life and area where he had worked so hard to build.

Ultimately, his sense of peace and tranquility has been destroyed. [ 44 ] All of these negative and unwanted effects resulted from the accused’s actions and by a simple decision by Greg to do some custom work in order to increase the family income. The Bugieras had nothing to do with any dispute, real or imagined, yet will continue to suffer the after effects for the rest of their lives. [ 45 ] Clarence Hanishewski has since sold the farmland and his concern for the safety of himself and his family due to the fact that Rodney has shown no remorse for his actions and may still be angry with him over the land.

This has caused an incredible amount of stress and he believes Rodney may have another family firearm which was a .22 calibre rifle still in his possession. Further, Clarence feels guilty about hiring Greg, a friend, to bail hay and the damage that was caused to Greg has a result of his decision. [ 46 ] The presentence report at page 10 states that Rodney is a medium risk to reoffend. It appears at odds with other observations contained in the report that state as follows: Under attitude: Rodney admits to the offense, however does not accept responsibility for his actions.

He displaces the blame to his mother and brother Clarence; stating she was responsible for what happened and the Clarence was responsible for bullying him. Rodney rationalized his behavior as necessary to get Greg off the field and showed no remorse for his actions that led to Greg being wounded. Under self-management: Rodney maintains an attitude of “entitlement” for the farm and believes that members of his family have deceived and taken everything from him. Rodney has shown no recognition for the impact of the event on the victim, his family, their

neighbors and the community as a whole. He has no insight into his crime and has no realistic interventions to deal with any of his risk issues. [ 47 ] In reviewing all of the factors, both mitigating and aggravating, it is clear to me that the appropriate sentence is for a period of incarceration of nine (9) years less time served from July 28, 2010, until today’s date of May 24, 2013. (which equates to two (2) years 10 months and 26 days) [ 48 ] This is the high end of the range given to me by Crown counsel. I have decided this range was appropriate due to the nature and manner this offense was carried out.

It was not a spur of the moment act. He used two guns and took ten shots. The message must be clear this action will be treated seriously by our society. [ 49 ] In addition, I will recommend that Mr. Hanishewski serve his time at the Regional Psychiatric Center in order to gain some insight and treatment for his continuing mental health issues over the course of his incarceration. [ 50 ] This will provide the best solution and long-term safety for society as a whole.

It also accurately reflects the accused’s ongoing mental health issues. [ 51 ] In addition, this is a primary designated offence pursuant to s. 487.04 of the Criminal Code . Pursuant to s. 487.051(1), I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances from Mr. Hanishewski that are reasonably required for the purpose of DNA analysis. [ 52 ] Further, I make an order pursuant to s. 109 of the Criminal Code prohibiting Mr.

Hanishewski from possessing any firearm, other than a prohibited firearm or restricted firearm and any cross-bow, prohibited weapon, restricted weapon, ammunition and explosive substance for life and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. I give him 60 days to divest himself of any and all weapons. [ 53 ] I wish to thank Counsel for their submissions in this matter. [ 54 ] Dated at the City of Yorkton, in the Province of Saskatchewan this 24th day of May, A.D. 2013. ________________________ P. Koskie, J