Her Majesty the Queen - v. -, 2016 SKPC 140

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 140 Date: October 20, 2016 Information: 31082690 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Laverne Raymond Nelson Appearing: Brian Hendrickson, Q.C. For the Crown Merv Shaw, Q.C. For the Accused SENTENCING DECISION M. GORDON, J 1 . Laverne Raymond Nelson is charged as follows: on or about the 24 th day of April, 2015 at or near Moose Jaw, Saskatchewan did: Rob money from Conexus Credit Union 2006, and at the time thereof did use threats of violence at Tara Jacob and Susan Smuk, contrary to section 344(1) (

b) of the Criminal Code . 2 . Mr. Nelson entered a guilty plea after a preliminary inquiry at which the main issue was the voluntariness of his warned statement. I concluded that the statement was voluntary and committed him to stand trial. Subsequently Mr. Nelson re-elected to Provincial Court and entered a guilty plea to the charge. A pre-sentence report was ordered and sentencing submissions were heard September 1 st , 2016. The Crown submitted that a sentence of four years was in order given the circumstances of the offence and the aggravating and mitigating factors.

The defence submitted that this is a unique set of circumstances and the court should consider a sentence on the lower end of the spectrum. Defence counsel pointed out that while a conditional sentence under

Section 742 is not

available for the offence of robbery, that a suspended sentence and a probation order with detailed and onerous conditions was stillavailable as a sentencing alternative. CIRCUMSTANCES OF THE OFFENCE 3. Mr. Nelson entered the Conexus Credit Union on South Hill Branch in Moose Jaw on April 24, 2015 at about 10:30 in themorning. His vehicle was parked near by. He approached the teller and handed her a note that said “do not set alarms or you get it first,no bullshit, no cops or if my friends see any cops they start with you”.

There were also comments about no marked bills and requesting$20, $50 and $100 dollar denominations and “hurry up you’ve got three minutes”. Mr. Nelson was wearing a dark hoodie pulled up tightwith dark glasses. Mr. Nelson also told the teller there was a guy outside and instructed the teller to get more money and hurry up. Theteller, Tara Jacob, went to her supervisor and said we are being robbed. The accused also made out like he was talking to somebody onthe phone and made references to the supervisor and said if there was anything funny they would get hurt. The teller said it sounded likeMr.

Nelson was being threatened on the phone. Mr. Nelson made it clear that they had ten minutes. They were not to call the police andwere told “we will come after you”. In addition Mr. Nelson said that he was here earlier and said something to the effect that they werebeing watched. Mr. Nelson obtained $100,051.00 in cash that was put in a plastic bag. All but $3,340.00 was returned. Mr. Nelsonpurchased a Ford Focus vehicle which is being held until this matter is concluded. 4. The Crown notes that Mr. Nelson gave a statement which this court ruled as voluntary on a voir dire. Mr.

Nelson said in hisstatement that he was just walking around and by chance decided to go to the Credit Union and take the money. The Crown notes thatMr. Nelson did not immediately confess. The Crown agrees the following are mitigating circumstances: no weapon was involved, noprior criminal record and compliance with all his release conditions; in custody for five days so eligible for the enhanced credit of 1.5 to1. 5. The aggravating circumstances are as follows: a very serious offence, and the teller had to return to the vault for more moneywhen Mr. Nelson was not satisfied with the initial amount.

The “ruse” of pretending to be on the phone and the veiled threats to theteller and the supervisor such as “we know your names”, and banks, Credit Unions are vulnerable victims just like confectionaries. Alarge amount of money was taken and this occurred during business hours when other members of the public could have been present. Mr. Nelson tried to conceal his identity by wearing a hoodie and dark glasses. There was a note. There was some sophistication such asasking for smaller bills and he did not park his vehicle right out front.

Finally, the Crown filed two victim impact statements by TaraJacobs and Susan Smuk. These women stated they were absolutely terrified at the time and after. They have had to take time off workand this incident still has a lingering effect on them and their families. 6. The Crown referred to the following cases, R v Peyachew, 2016 SKCA 21, R v Castle, 2009 SKQB 407, R v Sparvier, SKCA and R v Kaiswatum, 2003 SKCA 57. The Crown suggests that this case is closest to the Sparvier case from 1989where Mr. Sparvier received a sentence of three years and three months after credit for remand time.

This is certainly at the low end ofthe range as far as the Crown is concerned. 7. The defence submitted that Parliament has laid out a wide range of sentencing options even though a conditional sentence is nolonger available for this type of offence. The defence suggest that the Court of Appeal decisions indicate a range of one to three yearsbut points out that a suspended sentence and probation is also an available sentencing option. The defence stresses that the accusedentered a guilty plea at the first reasonable opportunity. Mr.

Nelson followed the advice of his lawyer who had reviewed the disclosure,and the preliminary hearing centred around the issue of the voluntariness of Mr. Nelson’s statement. The defence points out that the lawsays an accused person has the right to remain silent and consult counsel so the fact that the guilty plea came after an abbreviatedpreliminary inquiry should not be held against Mr. Nelson. 8. Mr. Shaw points out that the cases and the circumstances of the offences and the offenders in the cases all differ and one mustlook at the particular case at hand.

For example in R v Peyachew the facts are more serious in that the accused grabbed the teller andconfined nine people in an office and had the manager in a choke hold. There was actual violence used. In Peyachew the accused wascognitively challenged with mental health concerns. Mr. Shaw focused much of his submission on the personal circumstances of Mr.Nelson. The pre-sentence report outlines some of Mr. Nelson’s background. Mr. Shaw related that Mr. Nelson married his childhoodsweetheart in 1993. They had one child. However, in 2008 he learned that his wife met a fellow online.

The Nelsons had a house inMoose Jaw and a house in Fort McMurray. They sold the one house and made a $90,000.00 profit that was put into the wife’s account. The wife spent all of this money and did not provide any receipts. In May 2011 Mr. Nelson found out about the new boyfriend and thefact that the money was gone. He felt deceived and filed for separation. The wife wanted the equity in the Moose Jaw house so he tookout a loan himself for $25,000.00 which involved some hefty payments. About the same time his daughter became involved in a toxicrelationship. Mr.

Nelson suffered additional stress as a result of the treatment his daughter was subjected to by her boyfriend. Mr.Nelson became a commission salesman but the income was low and the bills kept increasing. The bank repossessed his vehicle. Hiscable was turned off. He received notices that the utilities would be cut off. His family helped out to some extent, but he was forced tosell all of his possessions and lost his house and car and had debts of about $60,000.00. He went to the Kindersley area where hisgirlfriend Marilyn’s family was located. Mr. Nelson returned to Moose Jaw as his daughter needed money.

In the last trip down his

daughter had no money and no food and his ex-wife was pressuring him for money. His girlfriend Marilyn was upset. Both his ex-wifeand his daughter were basically crying on his shoulder. On the day of the offence, Mr. Nelson left the house to get away from thisemotional turmoil, drove around and stopped at the Credit Union. He admits that he wrote a note, pulled on some safety glasses, and puthis hoodie up and went into the credit union. He doesn’t recall much after that but takes no issue with the circumstances relied on by theCrown. Mr. Nelson says he left his ex-wife some money as well as his daughter.

His state of mind was certainly not rational at thattime. Since February 2016 Mr. Nelson has been seeing a specialist in Battleford. He sees her for abuse and depression. He alsoparticipated in a program Communities For All, which he had attended two times a month for abused spouses. His present partnerMarilyn is a good influence. He is currently working at Sylvester RV and earns about a $1,000.00 a week. He works nine hour days sixdays a week. Marilyn is working too. Their situation has certainly stabilized and their financial situation is alright.

His daughter stilllives in Moose Jaw but left the abusive boyfriend, graduated from highschool and is raising her two children. 9. The defence states that everything collapsed for the accused and suggest that in these unique set of circumstances a sentencing atthe lower end of the scale would be appropriate. 10. Mr. Nelson also addressed the court and apologized and expressed his remorse. He admits that it was him but it wasn’t him. Itwas not his rational self. He has always tried to do the right thing and he is trying to rebuild his life.

He is embarrassed and ashamedabout his actions and says that the counselling is very difficult but is helping him to deal with his emotional issues. ANALYSIS AND DECISION 11. In R v Peyachew, 2016 SKCA 21, Mr. Justice Caldwell speaking for the Court stated at paragraph 32: In this regard I first note that robbery under section 344(1)(

b) of the Criminal Code is an offence for which Parliament has madeavailable the extraordinary penalty of imprisonment for life. This is an indication of how seriously Parliament treats the offence ingeneral terms. Moreover, the courts have often observed that banks are tempting targets with vulnerable employees and customers (see:R v Daniels at para 9; R v Trapasso at para 20; R v Hung (1990), 113 AR 205 (CA) at para 7; and R v Castle, at para 17). For example,in R v Castle, Dawson J. said: Robbery is considered to be a very serious offence. This is particularly so in the case of an unarmed bank teller.

In such cases, the courtshave almost always imposed significant periods of incarceration pointing out that denunciation and deterrence must be emphasized... 12. In R v Susan Mary Felix, 2016 SKPC 45, Judge Harradence refers to these same cases and states at paragraph 8: I agree with the Crown, that a starting point sentence has been identified by our Court of Appeal for robbery for three years. I mustcarefully assess the individual circumstances of this offender and the offence to determine what sentence is appropriate.

As indicated inR v Lacasse, 2015 SCC 64 [Lacasse], and R v Peyachew, 2016 SKCA 21 , at paragraph 17, the cardinal principle ofsentencing is whether the sentence is proportionate to the offender’s moral blameworthiness and the gravity of the offence. 13.

Later at paragraph 10, Judge Harradence says: I must look to the individual circumstances of this offence and offender, as indicated by Justice Wagner in Lacasse, “the determinationof a just sentence is a highly individualized exercise that goes beyond a pure mathematical calculation... everything depends on thegravity of the offence, the offender’s degree of responsibility and the specific circumstances of the case” (para 58). 14. Ms.

Felix was sentenced to 18 months incarceration followed by an 18 month probation order with strict conditions JudgeHarradence based his decision to a large extent on the systemic and background factors relating to Ms. Felix, which he felt he had toconsider in assessing her moral blameworthiness. As a result Judge Harradence said a restorative approach was part of a just sanction. So I am left with the sole issue in this decision of what is the appropriate sentence for Laverne Nelson in the circumstances that havebeen admitted by way of the guilty plea. 15. First of all I will consider the offender.

The pre-sentence report is very thorough and provides considerable detail with respect toMr. Nelson’s background and personal circumstances. Mr. Nelson was 52 years old at the time of the offence. He grew up in Bengoughand then the family moved to Moose Jaw. His mother was the primary caregiver and his father consumed a considerable amount ofalcohol and would leave for days at a time. He does remember after his father stopped drinking the home environment was happy andhealthy. Mr. Nelson was married from 1993 to 2012 and has one adult daughter and two grandchildren. Mr.

Nelson struggled with debtand this put a great strain on the relationship. He has a positive and healthy relationship with his current girlfriend Marilyn. Mr. Nelsonreports to be in good physical health but after his struggles with debt and the divorce his mental health deteriorated and he fell into astate of depression. He attended Battleford’s Mental Health and Addiction Services in November 2015. He is currently continuing

counselling. Mr. Nelson graduated from highschool in 1983 and completed one year of auto body repair at SIAST. He has worked as a janitor as well as doing auto body work. He held a sales job at a local vehicle dealership in Moose Jaw for many years and the family moved to Fort McMurray where he worked for a Ford Dealership before returning back to Moose Jaw. He is currently employed at Sylvester RV and is able to meet his basic monthly needs. RELEVANT LEGAL PRINCIPLES 16 . While I must consider the circumstances of the offender they cannot be the sole focus in determining the appropriate sentence. Sections 718 to 718.2 of the Criminal Code must be considered.

Section 718 states the fundamental purpose of sentencing is to contribute respect for the law and the maintenance of just, peaceful, and safe society by imposing just sanctions having one or more of the objectives set out in this section. Those objectives include: 1. Denunciation of unlawful conduct. 2. Deterring the offender and others from committing offences. 3. Separation of offenders from society where necessary. 4. Rehabilitation of offenders. 5. Providing reparation to the victim and community. 6. Promoting a sense of responsibility in offenders as well as an acknowledgment of harm done. 17 .

The relative emphasis to be placed on each of these objectives varies according to the circumstances of the offence and the offender.

Section 718.1 of the Criminal Code is clear that a sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. 718.2 of the Criminal Code requires a sentencing judge to have regard for secondary sentencing principles including consideration of aggravating and mitigating circumstances, totality, parity, and the need to consider all available reasonable sanctions other than imprisonment. PROPORTIONALITY 18 . Proportionality is central to the sentencing process as stated in R v Nasogaluak , 2010 SCC 6 .

In R v Arcand , 2010 ABCA 363 , Alberta Court of Appeal, the court noted that the proportionality principle ensures that a sentence should not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence. It is to ensure that offenders are held responsible for their actions and the sentence properly reflects and condemns the offender’s role in the offence and the harm caused. The offence in this case involved the robbery of a Credit Union. People in such positions are vulnerable because of the nature of their employment. Obviously, cash is available.

While the clerk admits she saw no weapon, Mr. Nelson made threats to her and her supervisor with respect to the harm that would come to them if they did not hand over the money or if they tried to call the police. In addition there was some planning or thought to this robbery. I reject any suggestion that it was a totally spur of the moment idea. Mr. Nelson had some disguise, parked his car a little ways away and had written a note with instructions as to the type of bills and what would happen if the employees tried to contact the police. In addition Mr.

Nelson carried on a pretend phone conversation suggesting there was others backing him up. He got away with a large amount of cash which he hid in the rural area around Kindersley. PURPOSES OF SENTENCING 19 . Mr. Nelson does not have a prior criminal record. I accept he is finally dealing with severe underlying issues since this offence. It would not appear that specific deterrence is a real concern in this case. It is highly unlikely that Mr. Nelson would ever do this again. As I have said, I accept that Mr.

Nelson is addressing many of the factors that contributed to the commission of this offence and that he will continue to do so. Therefore, he is well on his way to rehabilitation. Also it would appear unnecessary to separate Mr. Nelson from society for the sake of public protection given the lack of criminal record the fact the Mr. Nelson complied all of his release conditions and that there was no weapon and no actual violence used in the commission of the offence. It is on that basis that I think the defence suggests this is a unique case and could be dealt with by way of a non-custodial sentence.

However, it is clear from the case law that the sentence cannot focus entirely on Mr. Nelson. I accept, given the serious nature of the offence he has committed, that the sentence must give adequate attention to the principles of denunciation and general deterrence. RELEVANT AGGRAVATING AND MITIGATING FACTORS

20. I accept the aggravating and mitigating circumstances as identified by the Crown. I conclude that defence counsel takes no issuewith this list either, except for the fact that the court should not consider as an aggravating factor the fact that the accused initiallyremained silent and a preliminary inquiry was conducted to determine the voluntariness of his statement. I concur with that submissionand delete any reference or consideration of that in making my decision. PARITY 21.

In R v Macri, 2012 SKPC 94 Judge Kalmakoff as he then was, reviewed several decisions from the Saskatchewan Court ofAppeal at paragraphs 40 - 45. Judge Kalmakoff rejected defence counsel’s submissions for a suspended sentence and probation as wasgranted in R v Simpson-Fry, 2010 ONCJ 628 , 2010, ON CJ 628, Ontario Court of Justice and R v Rogers, 2011 SKPC 34,Provincial Court. He indicated the former was not binding on him and not consistent with the approach taken by the SaskatchewanCourt of Appeal. Rogers was distinguishable from the Macri case on the facts. 22. The principle of parity is included in

section 718.2(

b) of the Criminal Code. It states that an offenders sentence should be similarto sentences imposed on similar offender’s for similar offences committed in similar circumstances. It is recognized that parity does notmean uniformity. Disparities can exist where circumstances warrant, but they have to be justified. 23. In R v Forbes, 2016 SKPC 4 (sentence appeal dismissed by Court of Appeal) Judge Kovatch notes that some reduction of thelength of a jail sentence was in order (for trafficking charge) due to the personal improvement of the accused since the offence.

Nevertheless the court concluded that actual jail time was still necessary. At paragraph 15 in Forbes, Judge Kovatch states: There are of course some exceptional cases where the courts have opted to deal with these matters by way of a conditional sentenceorder. However, Parliament has since amended

section 742.1 of the Criminal Code so that a conditional sentence order is no longeravailable for this offence. I cannot believe that it was the intent of Parliament, by making this amendment to indicate that suspendedsentence and probation should be routinely ordered for these kinds of cases. Clearly by removal of the conditional sentence order option,Parliament was indicating that jail should be the norm in these kinds of cases. 24. I accept that for 52 years prior to this incident and the past 18 months since this incident, Mr. Nelson has been a law abidingcitizen.

He has made substantial changes in his life from this very dark time. However, I still must impose a sentence of actual jail togive effect to the principles of denunciation, deterrence and parity. I have reduced the length of the jail sentence but there are limits toany reduction which can be made. 25. In R v Gabriel, (ON SC), [1999] 137 CCC (3rd) 1 (ON SC) the court noted the importance and value ofvictim impact statements they can contribute to the offender’s rehabilitation and encourage the offender to take responsibility for theoffence by providing greater insight into the harm done by his or her conduct.

The Victim Impact Statements as provided in the Codecan provide information regarding the nature and seriousness of the offence which is relevant to proportionality. They can also serve toenhance the respect for the justice system by directly involving the victim and can achieve a measure of balance between the victim andthe offender by addressing in addition to the circumstances of the offender the consequences of the crime for the individual victims. TheVictim Impact Statements prepared and signed by Tara Jacob and Susan Smuk do just that. Of course Mr. Nelson has been providedwith a copy in advance.

I accept their statements and the harm they have suffered and continue to suffer as a result of Mr. Nelson’sactions. CONCLUSION 26. Applying the sentencing principles to the circumstances of this case and bearing in mind sentences in this jurisdiction for thisoffence, I conclude that a fit and proper sentence is two years less one day to be served at the Provincial Correctional Centre. This takesinto account the five days of remand time with the 1.5 to 1 credit translates to 8 days credit. This sentence also takes into account thedevastating effects Mr.

Nelson’s actions had and continued to have on the two named victims. There will be the applicable surcharge inthe amount of $200.00 payable forthwith in lieu of which the accused will serve the default time concurrent with the sentence imposedtoday. 27. There will be the mandatory firearms prohibition order under

section 109 of the Criminal Code for a period of ten years.

28 . Since robbery is a primary designated offence, I make an order authorizing the taking from Mr. Nelson a DNA sample for forensic analysis pursuant to

section 487.04(1) of the Criminal Code . In addition the Crown was to prepare and file a forfeiture order that it is anticipated the defence will consent to. If this is not the case I will hear further submissions with respect to that matter. _______________________ M. Gordon, J