Her Majesty the Queen - v. -, 2014 SKPC 047

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 047 Date: February 20, 2014 Information: 24542534 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mary Ellen Shingoose Appearing: D. Grindle For the Crown N. Halford For the Accused JUDGMENT P. KOSKIE, J [ 1 ] The defendant pled guilty to two counts namely: use a knife in robbing Hearns Westview Pharmacy, Yorkton, Saskatchewan of hydromorphone contrary to

section 344 (

b) of the Criminal Code and with intent to commit an indictable offence did have her face masked, contrary to section 351(2) of the Criminal Code . Circumstances of the Offence [ 2 ] The robbery was videotaped and filed as an exhibit in the proceedings. It shows a person wearing a Halloween mask waving a knife and imitation gun demanding drugs from the employees of the pharmacy. The request was complied with and the defendant escaped in a van driven by her son, which was later found abandoned. The van was owned by the defendant’s ex-husband who was

unaware the van had been taken and used in this manner. The defendant and her son stayed in hiding in Saskatoon for a period of approximately 55 days until apprehended. Defendant’s Circumstances [ 3 ] The defendant became addicted to drugs after being prescribed dilaudid for pain management and had been abusing the substance by injection for the past seven months prior to her arrest. [ 4 ] The defendant’s drug addiction led to a breakdown of her marriage and strained relationships with her family and mother.

It has also adversely impacted her health and employment situations and at present is suffering from fibromyalgia, diabetes, epilepsy and hepatitis C.

In short it has taken over her life and ruined it. [ 5 ] The defendant has for the past several years lived a transient lifestyle due to her drug addiction and her peers consist mostly of other drug users. [ 6 ] Remarkably, the accused has a very minimal criminal record with only one conviction for impaired driving in 2010 for which she received a fine and driving prohibition. [ 7 ] There are several Gladue factors which include the displacement from her home community, loss of cultural identity and a transient lifestyle as she left home in her teens.

The defendant is predeceased by two brothers, one who was found frozen to death and the other who overdosed on sleeping medications. [ 8 ] The pre-sentence report lists the defendant’s overall risk for reoffending as high with the major risk factors being stability of residence, family/marital relationships and employment, peer, drug use, attitude, and self-management. [ 9 ] A better judge of the defendant’s desire to change her behaviour is her mother who suggested on several occasions that the defendant attend treatment and make efforts to turn her life around.

Mary, the defendant, indicated she was not interested in taking that path and has limited insight into her addiction and offending behaviour. [ 10 ] I am hopeful the defendant will in time gain an insight into how dramatically her drug addiction has affected both her life and that of her son. Impact on Victim and Community [ 11 ] I must now consider the impact on the victims and community as stated in R. v. Elliot, 2010 BCSC 1354 , at paragraph 7 where Madam Justice Griffin stated: This offence occurred in a retail pharmacy store, with other customers coming and going.

Such crime has an impact in the community because it creates fear. Ordinary people who are not involved in the illegal drug trade or criminal activity fear that they may be random victims of violence as they go about their daily activities. Crimes like this can thus impair the sense of security and freedom of all people in the community. [ 12 ] Defence counsel correctly stated that the victim impact statements were not exaggerated. These impact statements indicated all the employees have lost a sense of security.

Some employees are jumpy when a customer walks in or when encountering the same Halloween costume, relive the event in some form. At the time of the offence, people were frozen and some cried nonstop for hours after the robbery.

One employee stated this has changed her life forever in that it leaves scars that you can’t see but feel in many ways, everyday. [ 13 ] The most extreme example is of one person who prior to the robbery was described as a happy person with no worries and has since the robbery, quit her job, been treated for a panic disorder and depression and to this day does not feel safe in her own skin.

Law and Range of Sentence [14] The law recognizes the serious nature of this offence. I have reviewed all the cases filed most of which contained lengthiercriminal records. [15] Our own Court of Appeal in R. v. Ahenakew (2001), 2001 SKCA 117 , S.J. No. 695, Mr. Justice Sherstobitoff stated: We have frequently pointed out that robbery with violence is the type of crime from which the public is to be protected. Accordingly anysentence imposed must leave no doubt that such conduct will not be tolerated.

Armed robbery involves an inherent danger to human lifebecause escalation of violence toward the victim, of lawful resistance by the victim, to an attack can easily result in death or seriousbodily harm. ...The following statement of Wakeling J.A. speaking for this Court in R. v. Alexson (1991), S.J. No. 268 apposite: This court has repeatedly indicated that offences of this nature will be treated severely. This is the only means available to the courts todiscourage crimes of this nature which involve victims who are particularly vulnerable to such an attack.

The range of sentences is suchthat three years is the lower end of the scale for an offence of this nature. [16] The Crown has filed a number of cases and suggest that four years incarceration less time served is an appropriate sentencehaving regard to all the factors of which several are aggravating and are listed below: 1) the threat of violence and that there was a knife used along with an imitation gun and as one employee put it, she didn’tmove an inch until she put her hands up. 2) the fact the defendant wore a mask and robe. 3) the use and recruitment of her son, a youth, in the robbery. 4) the fact that she and her son hid from authorities from August 29, 2013 until her arrest on October 23, 2013. [17] It is agreed and clear that denunciation and deterence must be at the forefront of this type of offence. [18] All the Crown cases filed involved defendants with lengthy criminal records unlike this defendant. [19] The case which is most closely on par is the Davidson, 2009 BCCA 485 case where the accused received 3 years.

Althoughhe had a lengthy criminal record, he was not wearing a disguise at the time of the offence. Paragraph 7 states: In the oft cited case of R. v. Brogan, 1999 BCCA 278, 125 BCAC 310, Madam Justice Ryan, for the court set out the range of sentencefor robbery with violence, involving young men, as between two and nine years.

She stated that the relevant factors in determining thesentence within that range include the age of the offender, the criminal record, the level of violence, the number of offences, the level ofpremeditation, use of a disguise, type of weapon, and its manner of use, prospect of rehabilitation, and the need for deterrence in theparticular community. [20] The defence has suggested that two years would be an appropriate sentence having regard to her lack of a criminal record andthe mitigating factors of an early guilty plea thus sparing the victims of the crime further trauma in reliving the event and her sincereapology.

Further, her assertion that she wasn’t going to hurt anyone. Decision

[ 21 ] I have reviewed all the case law filed and on the basis of the aggravating factors and nature of this offence, I have determined that a sentence of three years from today’s date is appropriate. [ 22 ] Effectively this is a sentence of three years and four months in that the defendant has served approximately 121 days in custody from October 23, 2013 up to and including February 20, 2014. [ 23 ] The nature of this offence is inherently dangerous and violent. A clear message needs to be sent that this behaviour will not be tolerated by society.

Further, there was some planning involved in these offences by wearing a mask and robe, and securing a getaway vehicle and driver. [ 24 ] Finally, there will be a lifetime firearms prohibition pursuant to

section 109 of the Criminal Code and a DNA order pursuant to s. 487.051. [ 25 ] I wish you good luck in tackling your addictions issues. If you do not gain some insight and help for your addictions, your life will continue to be controlled by your addictions as opposed to yourself and you can expect a life of further incarcerations. If involving your son in the commission of this offence does not provide you with the impetus or as your wake up call to deal with your addictions, I don’t know what else could. [ 26 ] I wish to thank both counsel for their excellent submission on sentencing. ________________________________ P. Koskie, J