Her Majesty the Queen - v. -, 2015 SKPC 172

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 172 Date: December 7, 2015 Information: 30106924, 39123971, 39123972, 30573092, 30106964, 30106985 & 39124200 Location: Prince Albe rt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Carmine Patti Nayneecassum Appearing: Maureen Longworth For the Crown Pouria Tabrizi-Reardigan For the Accused DECISION ON SENTENCE F.M. DAUNT, J [ 1 ] Carmine Nayneecassum entered guilty pleas to the following offences, all in the City of Prince Albert: 1.

July 27 th , 2015, steal Canadian currency from Source Adult Video, and at the time did use violence or threats of violence to Bobbie Harrington while armed with an offensive weapon to wit: a syringe, contrary to section 355(1) (

b) of the Criminal Code ; 2. August 6 th , 2015, steal Canadian currency and merchandise from Travelodge Beer Store, and at the time thereof did use violence or threats of violence to Rene Perillat while armed with an offensive weapon, to wit: two syringes, contrary to

section 344 (b)(

b) of the Criminal Code ;

3. August 6 th , 2015, steal Canadian currency and merchandise from Only Deals, and at the time thereof did use violence or threats of violence to Makaila Grimard while armed with an offensive weapon, to wit: a syringe, contrary to section 344(1) (

b) of the Criminal Code ; 4. August 7 th , 2015, steal food items from Tim Hortons, and at the time thereof did use violence or threats of violence to Meagan Dolter while armed with an offensive weapon, to wit: a syringe, contrary to section 344(1) (

b) of the Criminal Code ; 5. August 26 th , 2015, being at large on her recognizance entered into before a ... judge and being bound to comply with a condition thereof, to wit: report to a probation officer... immediately and after that as told to do so by your probation officer..., fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code ; 6. September 9 th , 2015, being at large on her recognizance entered into before a ... judge without lawful excuse fail to attend court... contrary to section 145(2) (

a) of the Criminal Code ; 7. September 22 nd , 2015, wilfully obstruct Cst. Dean Blanchard, a peace officer engaged in the lawful execution of his duty by providing a false name and date of birth, contrary to

section 129 (

a) of the Criminal Code ; and 8. September 22 nd , 2015, being at large on her recognizance entered into before a ... judge and being bound to comply with a condition thereof, to wit: not attend Prince Albert, SK unless for court purposes, fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code . FACTS [ 2 ] On July 27, 2015, at 7:18 PM, Carmine Nayneecassum walked into the Source Adult Video Store in Prince Albert. She said she had AIDS and threatened to stab the clerk with a needle if she didn’t open the till and hand over the money. Ms.

Nayneecassum received between $100 and $120 from the till. She then threatened to come back and stab the clerk if she phoned the police. Ms. Nayneecassum was identified from video surveillance footage and the contents of a discarded backpack. On August 5, a warrant was issued for her arrest. [ 3 ] On August 6 at approximately 2:00 PM, Ms. Nayneecassum took a cab to the Travelodge Beer Store. She asked for vodka, which was kept behind the counter. When the sales clerk turned his back to get the vodka, Ms. Nayneecassum produced two syringes full of blood.

She told the clerk to give her the vodka as well as the money out of the till. She told the clerk not to describe her to the cops or he would “end up in the river.” Ms. Nayneecassum got back in the cab and gave the vodka to the driver as a tip. [ 4 ] Later that same day, at about 6:20 PM, Ms. Nayneecassum walked into Deals Plus. She took some items to the till. She said, “I have full-blown AIDS. I’ll stab you unless you give me all the money in the till.” Ms. Nayneecassum also claimed to be in a gang and threatened to hurt the clerk. She stole $460 in cash and about $16 worth of merchandise.

The clerk was rattled by the experience and told police she was “freaked out” by the needle. [ 5 ] That same night, just after midnight, Ms. Nayneecassum was again in a cab and directed the driver to the Tim Horton’s drive-through. Ms. Nayneecassum got out of the back seat of the cab and stood at the window. She said, “Give me all your 100s and 50s from the till.” The employee closed the till and locked herself in the bathroom. She texted her boyfriend, who called 911. Ms. Nayneecassum got no money from this robbery, but did not pay for her chili and coffee. The police apprehended her outside Northcote Manor.

They told her to get down on the ground. She was slow to comply, so one officer drew his Taser and the other drew his service revolver. She had a large Tim Horton’s cup in her hand and three syringes in her waistband.

[6] Ms. Nayneecassum stayed in custody until August 26, 2015, when she was released on a $100 recognizance with conditionsincluding that she report to a probation officer immediately and enrol in the electronic monitoring program. She failed to do so. She alsofailed to appear in court on September 22, 2015 to answer to the robbery charges. [7] She was also required to stay away from Prince Albert except to attend court. On September 22, 2015, Ms. Nayneecassumwas at the PA Exhibition Grounds. By this time, she was the female “most wanted” by the Prince Albert Police Service. Whenapproached by a police officer, Ms.

Nayneecassum started to walk away. He grabbed her arm, whereupon she slouched and dropped tothe ground. She gave a false name and date of birth, and then another false name. She was identified through her photograph on thePAPS system. [8] She has been in custody ever since. As of the date of sentencing, she has accumulated 67 days of remand time, comprisingAugust 7-26 and September 22 to December 7, 2015. PERSONAL CIRCUMSTANCES [9] Ms. Nayneecassum is a 33-year-old member of the Ahtahkakoop Cree Nation. The Crown alleges no criminal record. In herearly years, Ms. Nayneecassum’s parents were both alcoholics.

She witnessed family violence. Happily, her parents have been soberand stable since she was 10. Her mother attended residential school as a child, which may help explain her alcoholism. Ms.Nayneecassum had a daughter six years ago, while she was living with her parents. The father was never in the picture. When herdaughter was one year old, the band gave Ms. Nayneecassum her own house on reserve. Ms. Nayneecassum was sober for a year afterthat, but she struggled as a single parent. Her house became a place for others to drink and use drugs, and she joined in.

She startedwith hydromorphone, and then graduated to Gabapentin and methamphetamine. She completed the MATRIX program in 2010 andparticipated in the Harm Reduction Program for 7 months in 2013. In 2014, her brother, with whom she was close, died of an overdose. [10] Her IV drug use spiralled out of control. In May, 2015, Ms. Nayneecassum left her daughter with her parents and went to liveon the streets of Prince Albert, where drugs are more accessible. She lost contact with her family so completely that her parents filed amissing person report.

They had no idea where she was until they saw her on the news, after her arrest. [11] Counsel for Ms. Nayneecassum says that she found herself among “winos and junkies” who stole from her and who, in turn,taught her how to steal. She did as she was told which is why the robberies are so similar. These people took the money she stole. Shedid not disguise her appearance, though there are video cameras at all of these establishments.

POSITIONS OF CROWN AND DEFENCE [12] The Crown points out that our Court of Appeal takes this kind of robbery seriously, and asks for “a penitentiary sentence.” [13] Defence counsel seeks six months in jail followed by a lengthy probationary period. He cites the lack of criminal record, her“low moral blameworthiness,” her remorse, her family obligations, and the Gladue factors in urging this court to emphasize rehabilitationover denunciation. ANALYSIS [14] The Crown is correct: our Court of Appeal takes this kind of offence seriously.

As Wakeling J.A. said in R v Alexson, SaskCA, June 6, 1991 (unreported): This Court has repeatedly indicated that offences of this nature will be treated severely. This is the only means available to thecourts to discourage crimes of this nature which involve victims who are particularly vulnerable to such an attack.

The range ofsentences is such that 3 years is at the lower end of the scale for an offence of this nature. [15] While there is no evidence that harsher sentences deter crime (see R v Nur, 2015 SCC 15 , [2015] 1 SCR 773), withinthe bounds of proportionality, only a lengthy sentence can adequately denounce serious misconduct.

[16] In R v Wiberg, (1997) (SK CA), 158 Sask R 246 (SKCA), [Wiberg], Madam Justice Gerwing states: As this Court made clear during the course of argument on this appeal, we have repeatedly stressed the importance of protecting peoplelike taxi drivers and convenience store operators who are in vulnerable positions and we have also repeatedly said that armed robbery isa matter to be taken extremely seriously.

Sentences frequently begin in the range of three years and may be increased for exacerbatingfactors or reduced for mitigating factors. [17] However, the Supreme Court of Canada, in Gladue and Ipeelee, requires that I put Ms. Nayneecassum’s actions in a historiccontext. Her mother went to residential school. Ms. Nayneecassum has suffered tragedy from her brother’s addiction. She has likelyalso suffered family dysfunction due to her mother’s residential school experience and the history of colonialism. Ahtahkakoop CreeNation suffers a higher rate of alcoholism and drug abuse than the general population.

The community deals with these problems, inpart, by providing addictions services on reserve, services which Ms. Nayneecassum has accessed in the past. However, drug and alcoholaddictions remain a problem. [18] On the other hand, the community of Prince Albert has its own problems, including rampant alcohol and drug abuse andvulnerable workers being robbed to fund others’ addictions. Considering its relatively small size, Prince Albert has more than its shareof violent crime. Still, it is rare to see a robbery involving syringes purportedly infected with the AIDS virus.

These crimes shockcommonly held community values. Although no violence was used, the threat was, in effect, that the victim would contract a fataldisease and suffer a slow, agonizing death. Ms. Nayneecassum produced syringes full of blood, showing that this was not some emptythreat. She had the means to carry it out.

Although no victim impact statements were presented as of the time of writing, at least onevictim was “freaked out.” Vulnerable service sector workers are not paid enough to put up with that kind of risk in the workplace. [19] Defence counsel urges leniency because of the low moral blameworthiness of the offender. A sentence must be proportionate,not only to the gravity of the offence, but to the degree of responsibility of the offender. He submits that the Gladue factors, combinedwith the fact that others who benefitted from Ms. Nayneecassum’s crimes go unpunished, lessen her degree of responsibility.

Ms.Nayneecassum may have felt that she had to prove herself to her new street friends, but the fact is: she had choices. She had a sober,supportive family at Ahtahkakoop. Indeed, she left her child with them. She came to Prince Albert to live on the street because of heraddiction. She chose the drugs over her daughter. She had options. It’s not like she had nowhere to turn. If she wanted it, she knewwhere to get help, having accessed it before. Even if she felt she had to steal to get by, she certainly did not have to resort to the threat ofviolence. [20] In Wiberg, the offender was given one year in prison.

However, that was for one robbery. He was a youthful offender. Hemade full restitution and took steps toward his own rehabilitation. Ms. Nayneecassum, on the other hand, went on a crime spree,committing four robberies in the course of a couple of weeks, three in one day. When released from custody, she went AWOL and didnot follow through on her release plan. [21] I find the following factors aggravating: vulnerable victims; multiple robberies; a particularly nasty threat of violence; thefailure to take any steps toward restitution or rehabilitation.

I find the following factors to be mitigating: early guilty pleas; sincereremorse; most of the robberies were not late at night; there were no injuries; there is no criminal record. [22] This will be Ms. Nayneecassum’s first jail sentence. Thus, the sentence should not be unduly long or harsh. However,heeding Gladue factors, I must balance the goals of sentencing. Here, denunciation ranks high on the list. The fact that Ms.Nayneecassum utterly failed to follow through on her bail plan suggests that she is not ready for a rehabilitative sentence. She can takeprograms in custody to begin healing her addiction.

I find it necessary to separate her from society for a time. [23] Ms. Nayneecassum committed four robberies in a short period of time. A three-year penitentiary sentence reflects theseriousness of these offences and adequately denounces the conduct while accounting for the mitigating factors. Because they werecommitted in a short period of time, and applying the totality principle, those sentences will be served concurrently. [24] On the robbery charges, therefore, the sentences are three years, or 1095 days concurrent to each other.

She will be given 101days credit for 67 days remand time, with the balance of 994 days left to serve. There is also a $200 surcharge on each count, which willbe payable forthwith. She may serve the statutory default time concurrent to any other sentence. [25] There will be a s. 109 firearms prohibition for a period of 10 years. There is a mandatory DNA order as well. There will be a

warrant in Form 5.03 authorizing the taking of a DNA sample for the national database. [ 26 ] On the breach charges, given that she has no record and I have already considered the breaches as aggravating factors, the sentence on each is a $100 fine and $30 surcharge, also payable forthwith. The statutory default time shall be served concurrently to any other sentence. [ 27 ] Dated this 7 th day of December, A.D. 2015, at the City of Prince Albert, in the Province of Saskatchewan. ____________________________ F. M. Daunt, J