Her Majesty the Queen - v. -, 2012 SKPC 94

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 094 Date: June 25, 2012 Information: 37857170 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Aaron Macri Appearing: James Fitz-Gerald For the Crown Catherine Maloney For the Accused JUDGMENT J.D. KALMAKOFF , J I. INTRODUCTION [ 1 ] Aaron Macri has entered guilty pleas to the following charges: (1) ...on or about the 24 th day of April 2008 at or near Regina, Saskatchewan did steal cigarettes and cash, and at the time thereof did use violence towards George Volikas, contrary to

section 344 (

b) of the Criminal Code ...; and

(2) ...on or about the 28 th day of April 2008 at or near Regina, Saskatchewan did steal cigarettes and cash, and at the time thereof did use violence towards Sylvia Lipp, contrary to

section 344 (

b) of the Criminal Code ... [ 2 ] My task is to determine the appropriate sentence. II. FACTUAL BACKGROUND [ 3 ] Alex Allan owed Aaron Macri money. Mr. Allan proposed that he raise the money to repay Mr. Macri by committing robberies and splitting the proceeds. Mr. Macri would simply need to act as the driver for the robberies. On both occasions relevant to this case, the robberies were planned; Mr. Macri knew that Mr. Allan would be entering the store armed with a knife, and with his face covered, and that a robbery would take place. Mr. Macri knew that it was his job to drive Mr.

Allan to the scene of the robbery, and drive him away after the robbery was complete. He willingly agreed to participate in this plan, and received a portion of the cash and cigarettes taken from each robbery. Mr. Macri is fully liable as a party for the acts committed by Mr. Allan. [ 4 ] On April 24, 2008, eighteen year old George Volikas was working at the S.T.S. convenience store in Regina. In the late afternoon, Mr. Macri drove Mr. Allan to that store. Mr. Allan entered the store carrying a large kitchen knife. He stepped around the corner of the counter, pointed the knife at Mr.

Volikas and another individual - using the knife to hold them immobile - and demanded that Mr. Volikas open the till. Mr. Allan then took $100.00 cash and several packages of cigarettes, then left the store. [ 5 ] Four days later, in the early evening of April 28, 2008, Mr. Macri drove Mr. Allan to the S.T.S. convenience store to commit another robbery. On that evening, Sylvia Lipp was working in the store by herself. Mr. Allan entered the store, stepped around behind the counter, and demanded that Ms. Lipp open the till. She did, and Mr. Allan removed the cash from it. Mr.

Allan then opened the cigarette cabinet and stole approximately 20 packages. Mr. Allan then demanded Ms. Lipp’s purse. Ms. Lipp surrendered only the cash from the purse, convincing Mr. Allan to allow her to keep the purse because it contained personal items. All the while, Mr. Allan was carrying a large knife, which he waved at Ms. Lipp while in close proximity to her. Once he had obtained the cash and cigarettes, Mr. Allan left the store. III. POSITION OF THE PARTIES [ 6 ] The Crown seeks a period of imprisonment of 18 months, along with a DNA sample order and firearms prohibition.

The Crown argues that I cannot consider a conditional sentence, as the robberies to which Mr. Macri was a party are “serious personal injury offences” as defined in

section 752 of the Criminal Code . The Crown also submits that, even if a conditional sentence were available in this case, it would not be a fit sentence. [ 7 ] Mr. Macri argues that if I determine that a jail sentence is appropriate, I can properly order it be served in the community as a conditional sentence, because the robberies are not “serious personal injury offences”, given their particular facts. Alternatively, Mr. Macri argues that I can properly impose a suspended sentence, as opposed to incarceration, regardless of whether a conditional sentence is available. IV. ISSUES [ 8 ] There are two main issues raised by the circumstances of this case:

(1) Is a conditional sentence available for the offences to which Mr. Macri has pled guilty; and

(2) Regardless of whether or not a conditional sentence is available, what is the appropriate sentence? V. ANALYSIS

(1) Is a conditional sentence available for the offences to which Mr. Macri has pled guilty? [ 9 ] As of December 1, 2007, conditional sentences are not available for “serious personal injury offences”, as that term is defined in

section 752 of the Criminal Code . [ 10 ] Through his guilty plea, Mr. Macri has acknowledged the essential elements of the offence of robbery. Although he never entered either of the stores which were robbed, he was a party to the actions of Mr. Allan in carrying the knife, pointing it at Mr. Volikas to hold him immobile during the first robbery, and showing it to and waving it around near Ms. Lipp during the second robbery. As a party to the offences, Mr.

Macri’s culpability is equal to that of the principal offender, and his status is the same as that of the principal offender in considering whether he has committed a serious personal injury offence. [ 11 ] Robbery is an indictable offence which carries a maximum penalty of life imprisonment. As it is defined in

section 343 of the Criminal Code , robbery can be committed in a number of different ways. Because of the wide range of circumstances under which robbery can be committed, it is not automatically a “serious personal injury offence” as defined in

section 752 (See R. v. Simpson , 2012 SKPC 18 ; R. v. Jolicouer , 2011 MBQB 129 ). Robbery fits within the definition of “serious personal injury offence” in

section 752 only if commission of the offence involves: (

i) the use or attempted use of violence against another person; or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person. [ 12 ] Whether the offence involves “use or attempted use of violence” or “conduct endangering or likely to endanger the lives or safety of another person or inflicting or likely to inflict severe psychological damage upon another person” is a matter to be determined from the facts of the individual case. [ 13 ] In this case, there is not sufficient evidence before me to conclude that the robberies involved “conduct endangering or likely to endanger the life or safety” of other persons, or that they inflicted or were “likely to inflict severe psychological damage upon another person”.

I will, therefore, confine my analysis to the question of use or attempted use of violence. [ 14 ] The Oxford Online Dictionary defines “violence” as “behaviour involving physical force intended to hurt, damage, or kill”. A secondary definition of “violence” from that same source is: “the unlawful exercise of physical force or intimidation by the exhibition of such force.” [ 15 ] The level of violence involved in an offence need not be objectively serious in order for the “serious personal injury offence” definition in

section 752 to be engaged (R. v. Goforth , 2005 SKCA 12 ). However, as my Sister Judge Tomkins found in R. v. Simpson , supra, not all robberies involve the use or attempted use of violence. In Simpson , Judge Tomkins relied on the Saskatchewan Court of Appeal’s decision in R. v. Roy , 2008 SKCA 197 , and held that the mere display of a weapon at some distance from the victim, without directly threatening its use, amounted to a threat of violence sufficient to ground a robbery charge, but did not amount to “use or attempted use of violence” so as to make the offence a “serious personal injury offence” within the meaning of

section 752 . [ 16 ] In R. v. Jolicouer , supra , the offender went into a store, handed the clerk a bag, and instructed the clerk to put money inside it. While the Court found that the implicit threat of violence was sufficient to make out the offence of robbery, there was no overt violence, no display of a weapon and no other threatening gestures. As such, the Court found that the robbery was not a “serious personal injury offence”. [ 17 ] In R. v. Ponticorvo , 2009 ABCA 117 , the Alberta Court of Appeal acknowledged, much as the Saskatchewan Court of Appeal did in Roy, supra, that brandishing of a weapon does not necessarily amount to

an act of violence, especially if the weapon is brandished at such a distance from the victim as to pose no immediate danger. However, the closer the proximity to the victim, and the greater the

danger to the victim, the stronger the inference of violence. [ 18 ] In my view, the decisions in Simpson and Jolicouer are distinguishable from this case on their facts. Jolicouer involved no overt violence, no weapon, and a charge that was very generally framed. In Simpson , the offender pled guilty to a charge of committing robbery by threats of violence, and the principal offender merely displayed a knife when he was at a distance from the victims which suggested there was no immediate possibility of him using the knife. [ 19 ] That is different from the factual situation before me.

In this case, in the first robbery, Mr. Allan not only showed the knife, he pointed it at the victims and used it to hold them immobile, while in close proximity to them. In the second robbery, Mr. Allan waved the knife around, and was in close proximity to Ms. Lipp, the victim, at the time. The prospect and danger of the knife being used was very real. [ 20 ] Furthermore, a guilty plea is an acknowledgment of the essential elements of the offence. In this case, Mr.

Macri has acknowledged, through his guilty pleas, that violence was used towards George Volikas and Sylvia Lipp at the time they were robbed, as that is the way the charges are framed. [ 21 ] The conclusion that the robberies in this case involved the use or attempted use of violence also finds support in the decision of Madame Justice Dawson in R. v. Pelletier , 2011 SKQB 7 . The offender in that case was convicted of two robberies, framed as “steal...and at the time thereof did use threats of violence.” In both robberies, Ms.

Pelletier displayed a knife, in close proximity to the victims, while stealing items from them. In one of the robberies, she merely showed the knife to the victim, and in the other, she pointed it at the victim’s belly. The trial judge found that the “use of the knife on both occasions was a threat of violence”. On the Crown’s application to have Ms. Pelletier sentenced as a Long-Term Offender, Dawson J. noted, at paragraph 145, that she was satisfied that each of the robberies of which Ms. Pelletier was convicted was a serious personal injury offence as defined in

section 752 (

a) of the Criminal Code . [ 22 ] In R. v. Lebar , 2010 ONCA 220 , the circumstances of the offence were very similar to the case before me, at least in terms of the “use or attempted use of violence” involved. In Lebar , the offender entered a liquor store, held a knife close to a cashier, and demanded money. The trial judge found that, in the circumstances, the robbery involved violence, but was not sufficiently serious to engage the “serious personal injury offence” definition in

section 752 . The Court of Appeal disagreed, saying that once the trial judge found the robbery to have involved the use of violence, it was a serious personal injury offence, and there was no room for a qualitative analysis of the seriousness of the violence, following R. v. Goforth , supra . At paragraph 49, Epstein, J.A. wrote: ...the meaning of “violence” in this definition must be informed by the entirety of the definition of a serious personal injury offence.

A serious personal injury offence is defined, in part, either as an offence involving the use or attempted use of violence against another person, or “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person.” Taken together, and especially taking into account the far-reaching meaning of the word “safety”, these two clauses point to the legislature’s intention to cover a very expansive range of dangerous behaviour with the term “serious personal injury offence”. [ 23 ] The reasoning in Lebar was followed by the Nova Scotia Court of Appeal in R. v.

Griffin , 2011 NSCA 103 . In that case, the offender committed robbery of convenience store. With her face partially concealed by a black hoodie and sunglasses, Ms. Griffin entered the store, pulled out a 10" knife and tapped it on the counter while demanding cash from the clerk. The trial judge imposed a conditional sentence on the 21 year-old first-time offender, finding that, in the circumstances, the offence did not involve the use or attempted use of violence. The Court of Appeal disagreed, and held that the conduct did involve the use of violence, and as such, amounted to a serious personal injury offence.

At paragraphs 29 - 30, Bryson J.A. wrote: 29 ... The use of the knife was an implied threat of violence because a knife is inherently dangerous. It can readily injure, even in the hands of an inept assailant. For the trial judge to conclude that Ms. Griffin's conduct did not constitute

an act of violence because she did not direct it "toward the attendant" or hold it to "her body to prevent any resistence", or say anything "threatening violence" (para. 36 of the decision), ignores the consequence clearly implied for non compliance. Why else use a knife? Ms. Griffin did not tap a pen on the counter. She was not a block away when she made her demand. To say that Ms. Griffin only "... stole money from the attendant while she was armed with an offence weapon [ sic ] ..." (para. 36) equally ignores the use to which Ms. Griffin put the knife.

30 In the result, I agree with the Crown's submission that the display of the knife in the circumstances of this case -- the wearing of a disguise; the demand for money -- all constitute a threat of violence. Moreover, I agree that the threat of violence in the circumstances of this case, was itself

an act of violence. In similar circumstances, the Ontario Court of Appeal observed in Lebar : 32 ... I find it difficult to accept that the offence committed by [the respondent] did not involve violence as submitted by the Defence. The very nature of using a knife as a threat to induce a desired result, whether implied or real is

an act of violence. ... [ 24 ] Applying the reasoning in those cases, I am satisfied that, in the factual circumstances of this case, Mr. Macri has been convicted of serious personal injury offences. In the robberies committed against George Volikas and Sylvia Lipp, the principal offender displayed the knife while in close proximity to both victims, and clearly used it to effect his purpose of intimidating or frightening the victims, and overcoming any resistance to the theft. The knife was pointed at or waved about in front of the victims.

The circumstances were such that the potential for the knife to actually be used against the victims was very real. In my view, the robberies in this case involved the use or attempted use of violence. A conditional sentence is not available.

(2) What is the appropriate sentence ? [ 25 ] Regardless of whether a conditional sentence is available, I must still determine the sentence that is appropriate for this offender and these offences.

a) The Offender [ 26 ] Aaron Macri is 24 years old. He was 20 when he committed the offences. He has no prior criminal record. At the time of the offences, he was grieving his mother’s death, regularly using cocaine, and associating with a negative peer group. However, since the offences were committed, he has made positive changes in his life. He has quit using drugs, changed his peer group, and found stable employment. [ 27 ] Mr. Macri left Regina before he was identified as a suspect in this matter. However, once he learned that he was the subject of a police investigation, Mr.

Macri returned to Regina, turned himself in, and cooperated fully with the police, including providing a warned statement detailing his involvement.

b) Relevant Legal Principles [ 28 ] While I must be mindful of the circumstances of the offender, they cannot be my sole focus in determining the appropriate sentence. My decision must be guided by the provisions of sections 718 to 718.2 of the Criminal Code . [ 29 ] According to

section 718 , the fundamental purpose of sentencing is to contribute to respect for law and the maintenance of a just, peaceful and safe society by imposing just sanctions having one or more of the objectives set out in that section. Those objectives include denunciation of unlawful conduct; deterring the offender and others from committing offences; separation of offenders from society where necessary; rehabilitation of offenders, providing reparations to the victim and community; and promoting a sense of responsibility in offenders as well as acknowledgment of harm done.

The relative emphasis to be placed on each of these objectives varies according to the circumstances of the offence and the offender. [ 30 ] The fundamental principle of sentencing, as set out in

section 718.1 of the Criminal Code , is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Regardless of the relative emphasis given to the sentencing objectives listed in

section 718 , the resulting sentence must respect the fundamental principle of proportionality. [ 31 ]

Section 718.2 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.

c) Proportionality: gravity of the offence, and the degree of responsibility of the offender [32] Proportionality is central to the sentencing process (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Solowan, 2008SCC 62, [2008] 3 S.C.R. 309). It is the most important of the factors codified in sections 718 to 718.2 (R. v. Arcand, 2010 ABCA 63). Itserves the principle of restraint by requiring that a sentence not exceed what is just and appropriate, given the moral blameworthiness ofthe offender and the gravity of the offence.

It also seeks to ensure that offenders are held responsible for their actions and that thesentence properly reflects and condemns their role in the offence and the harm caused (R. v. M. (C.A.), (SCC), [1996] 1S.C.R. 500, at para. 81 - 82). [33] The offence of robbery carries a maximum penalty of life imprisonment. It is, by definition, a very serious offence. Insituations where robbery involves conduct that makes it a “serious personal injury offence”, a conditional sentence of imprisonment isnot available.

In my view, this is a further indication from Parliament of the objective gravity of the offence. [34] The offences in this case involved robbery of clerks working at convenience stores. People in such positions are inherentlyvulnerable to robberies because of the nature of their employment, as they frequently work alone and late at night in businesses wherecash and other theft-worthy items are present. The fact that these were convenience store robberies adds to the gravity of the offences. The use of a weapon adds to the gravity of the offences in this case, as does the fact that both robberies were planned.

As such, in myview, the gravity of the offences is significant. [35] It is true that Mr. Macri was not the principal offender in these robberies. He did not personally enter the convenience stores. He did not personally wield the knife or commit any direct acts of violence against the victims. He did not disguise his face. However,he participated in the planning of the robberies, and delivered the principal offender to both of the robberies, knowing exactly what wasgoing to happen. He shared in the proceeds of the crimes.

In my view, the degree of his responsibility is also very significant, as itdiffers only slightly from that of the principal offender.

d) Purposes of Sentencing -

Section 718 [36] Mr. Macri has no prior criminal record and appears to have made positive changes in his life since he committed theseoffences. It would not appear that specific deterrence is a real concern in his case. Further, given the passage of time since the offencesoccurred and the fact that, by all accounts, he appears to have addressed many of the factors that contributed to the commission of theseoffences, it would seem that rehabilitation needs little attention. It also would appear unnecessary to separate Mr.

Macri from society forthe sake of public protection, given the lack of criminal offending prior or subsequent to these offences. [37] Having said that, the sentence cannot focus entirely on Mr. Macri. Given the serious nature of the offences he has committed,the sentence must give adequate attention to such principles as denunciation and general deterrence.

The Court of Appeal inSaskatchewan has repeatedly indicated that robberies, especially those involving vulnerable victims like convenience store clerks, mustbe treated severely, with an emphasis on denunciation, and sentences that send the message that such offences will not be tolerated (SeeR. v. Alexson (1991), (SK CA), 97 Sask. R. 77 (C.A.); R. v. Stonechild (1995), (SK CA), 128 Sask.R. 210 (C.A.); R. v. Severight (1996), (SK CA), 137 Sask. R. 306 (C.A.); R. v. Kaiswatum, 2003 SKCA 57; R. v.Gordon, 2011 SKCA 130).

e) Relevant aggravating and mitigating factors [38] I consider the following to be aggravating factors in this case: • the robberies were committed against particularly vulnerable victims, being convenience store clerks; • the robberies were planned, not spontaneous; and

• Mr. Macri participated in not one, but two robberies. He had ample opportunity after the first robbery to change his mind andwithdraw himself from the plan, and chose instead to participate in the second robbery. [39] I consider the following to be mitigating factors: • Mr. Macri’s youth; • the lack of previous criminal record; • Mr. Macri was cooperative with the police; • guilty pleas were entered before preliminary inquiry or trial; and • Mr. Macri has made many positive changes since he committed the offences.

f) Parity: sentences in similar cases [40] The principle of parity is embodied in

section 718.2(

b) of the Criminal Code. It dictates that an offender’s sentence should besimilar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances. Parity, however, does notmean uniformity. The proportionality principle, and the individual nature of sentencing means that disparity can exist wherecircumstances warrant. Such disparities, however, should not be egregious, or unjustified. [41] In R. v. Severight, supra, the offender committed a knife-point robbery of the lone employee at a gas bar.

The trial judgeimposed a sentence of one day in jail, followed by two years probation. The Court of Appeal increased the sentence to a jail term of twoyears less one day, noting the need for sentences in such cases to focus on denunciation and deterrence. At paragraphs 10-11, Tallis J.A.wrote: 10 We have frequently pointed out that robbery with violence is the type of crime from which the public is to be protected.

Accordinglyany sentence imposed must leave no doubt that such conduct will not be tolerated... 11 In this case there is an aggravating factor because the robbery involved a small confectionary and gas bar. This Court has repeatedlystressed the vulnerability of confectionary stores and others who must earn their living by working late hours. Those who commitrobbery with violence in such circumstances should expect lengthy prison terms. [42] In R. v. Alexson, supra, the offender robbed four small businesses. The trial judge imposed four consecutive 7-month jailsentences, for a total of 28 months.

The Court of Appeal increased the total sentence to 40 months, made up of four consecutive 10-month sentences. The Court of Appeal in Alexson noted the need to treat such offences severely, stating at paragraph 3 that such is the“...only means available to the courts to discourage crimes of this nature which involve victims who are particularly vulnerable to suchan attack”, and suggesting that prison terms of three years are at the lower end of the appropriate range. [43] R. v.

Kaiswatum, supra, involved a single convenience store robbery, with circumstances similar to the robberies in which Mr.Macri was involved. The offender in Kaiswatum was a 29 year old, with a previous record. The trial judge imposed a sentence of 9months imprisonment, which the Court of Appeal increased to 18 months, noting at paragraph 7 that: This Court has consistently approved of significant prison sentences for robberies of convenience stores and other places open late,leaving the victim isolated and vulnerable... [44] In R. v. Wiberg (1997), (SK CA), 158 Sask.

R. 246 (C.A.), the offender, who had committed robbery of aconvenience store, was eighteen years old and had no previous record. Following the robbery, he made significant positive changes inhis life. The trial judge imposed an 18 month conditional sentence order. This was overturned by the Court of Appeal, who imposed asentence of custodial imprisonment of one year.

[45] R. v. Stroshein, 2001 SKCA 20 involved the armed robbery of a pizza store. The offender in that case was 20 years old andhad a minor criminal record. The trial judge imposed a conditional sentence of 18 months, with 6 months of electronic monitoring. TheCourt of Appeal found that a conditional sentence was unfit in the circumstances, and imposed a period of real imprisonment of 10months, in addition to the 6 months he had already spent subject to electronic monitoring. [46] Defence counsel has referred me to the cases of R. v.

Simpson-Fry, 2010 ONCJ 628, in which the offender received asuspended sentence with three years probation, in addition to 7 months spent on remand, for a drugstore robbery; and R. v. Rogers, 2011SKPC 34, in which the offender received a 6 month jail sentence for a street robbery. [47] With the greatest of respect, I am unable to place much reliance on either of these cases in consideration of the parityprinciple. Rogers is distinguishable on the facts. Our Court of Appeal has been quite clear that convenience store robberies are treatedmore seriously than street robberies when it comes to sentencing.

Simpson-Fry is not binding, and is not consistent with theSaskatchewan Court of Appeal authorities. Furthermore, it is unclear what credit was given to the offender in that case for pre-trialcustody.

g) Restraint [48] Sections 718.2(

d) and (

e) require that an offender not be deprived of liberty if less restrictive sanctions are appropriate. It alsorequires that a sentencing judge consider all available sanctions other than imprisonment that are reasonable in the circumstances. [49] I have considered all reasonable alternatives to imprisonment in this case. In my view, none are appropriate. A conditionalsentence is not available.

Measures such as fines would not be sufficient to meet the goals of denunciation and deterrence, and wouldalso offend the principles of parity and proportionality. [50] In the circumstances of this case, a suspended sentence with probation would not be appropriate either. A suspended sentenceis primarily a rehabilitative sentence, not designed to punish the offender and therefore not designed to have a denunciatory or generaldeterrent effect (See R. v. Dunn, 2011 NBCA 19; R. v. Taylor (1997), (SK CA), 163 Sask. R. 29 (C.A.)).

Where thenature of the offence is such that the sentence must give primary consideration to denunciation and deterrence, a suspended sentencewith probation is inadequate.

In light of the relevant authorities from the Court of Appeal, a suspended sentence in this case would alsooffend the principle of parity, and moreover, would not be proportionate to the gravity of the offence and the degree of responsibility ofthe offender. [51] It is clear that nothing short of a sentence of imprisonment is appropriate in this case, as no measure short of imprisonmentwould comply with the principle of proportionality, while at the same time paying adequate attention to the need for denunciation anddeterrence. [52] Having said that, I must keep in mind the principle of totality, and the need to consider Mr.

Macri’s personal circumstances,including the mitigating factors in this case, and Mr. Macri’s status as party, rather than principal offender. In light of thoseconsiderations, a sentence toward the lower end of the appropriate range is in order. VI. CONCLUSION [53] I sentence Mr. Macri, on each of the two counts, to a period of imprisonment of one year in a Provincial Correctional Centre,to be served concurrently. [54] In addition to that, I impose the mandatory firearms prohibition order under

section 109 of the Criminal Code, for a period of10 years.

[ 55 ] Finally, since robbery is a primary designated offence listed in paragraph (

a) of

section 487.04 of the Criminal Code , it is mandatory that I make an order authorizing the taking from him of a DNA sample for forensic analysis, pursuant to

section 487.051(1). I make that order as well. J.D. Kalmakoff, J