R. v. Pulak, 2019 MBPC 81

CITATION: R. v. Pulak , 2019 MBPC 81 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) M. Bettencourt for the Crown ) ) - and – ) ) ) James Pulak ) ) B. Gladstone for the Accused ) ) Reasons for Decision ) Delivered: December 17, 2019 C.A. DEVINE, P.J. INTRODUCTION [ 1 ] Mr. Pulak pleaded guilty to a charge of robbery arising out of an incident that occurred January 28, 2018. A presentence report was prepared. On the date of the sentencing hearing, Mr.

Pulak pleaded guilty to additional charges of operating a motor vehicle while impaired, failure to comply with his recognizance by drinking alcohol, and driving without his drivers licence contrary to The Highway Traffic Act . These offences occurred on June 22, 2019. This is my sentencing decision. [ 2 ] The most serious of the charges is the robbery. Mr. Pulak and a co-Accused had purchased cocaine from their dealer and back in their car realized they had received less cocaine than they had paid for.

They chased the drug dealer back to his apartment building and then assaulted him and stole the $250.00 back from him. The assault was captured on the apartment building’s video surveillance camera. It was a prolonged assault during which time the victim was kicked, punched, thrown to the ground and then robbed of the money and his wallet. Residents of the apartment watched through the glass, one intervened, and then a passerby heard the victim’s screams and pushed Mr. Pulak away from the victim. Mr. Pulak was not deterred however, until his co-Accused got the money.

They left, but were stopped by the police and immediately arrested. [ 3 ] The Crown is seeking a sentence of 15 months in jail for the robbery, to be followed by two years of supervised probation. The Defence argues that Mr. Pulak’s actions that day were tied to his drug use and that he has turned his life around since the offence. He is working full time in construction and has a young son. He does not use cocaine any longer. He goes to Cocaine Anonymous meetings when he is in Winnipeg. The Defence is seeking a sentence of three months to be served intermittently, which would allow Mr.

Pulak to continue working. [ 4 ] As for the driving offences and breaches, counsel are seeking appropriate fines and a one year driving prohibition and Defence is seeking a reprimand on the Highway Traffic Act offence. FACTS [ 5 ] Mr. Pulak and the co-Accused Brian George went to buy powder cocaine from their dealer Justin Allan around 7:20 p.m. on January 28, 2018. They paid him $250.00 cash.

When they examined the cocaine, they discovered that they received less cocaine than they expected and paid for. [ 6 ] They chased the dealer back to his apartment building and assaulted him and took $250.00 from him. [ 7 ] The video of the offence shows the victim run into lobby of the apartment building. It is all glass in front and all glass to the area where presumably the elevators are. The video is very clear. [ 8 ] It shows the victim running in, chased by Mr. Pulak and then the co-Accused. The victim ran into the lobby and Mr. Pulak turned to the co-Accused who was motioning and gesturing for Mr.

Pulak to follow the victim and somehow interact with him. There is no sound. I infer it was on the co-Accused’s direction that Mr. Pulak then approached and started assaulting the victim. He kicked the victim in the stomach and then swung at him and hit him four times. The co-Accused appeared to be trying to get into the victim’s jacket, while the Accused held him in a bear hug. Then the Accused swung the victim onto the floor. While the co-Accused was rummaging through the victim’ pockets, the Accused stomped his head once and attempted to do so a second time, but missed.

By this time two other residents were watching from the other side of the lobby through the glass. Mr. Pulak’s motions and behaviour were

jumpy and jerky. He was jumping up and gesturing aggressively towards the men on the other side of the glass. One of the men was on his cell phone, presumably calling police. The other man then came into the lobby to intervene. As he was trying to break up the assault, Mr. Pulak was jumping around and circling and then grabbing at the victim, as was the co-Accused, I infer trying to get their money back. The victim was on his back on the floor, with his legs bent at the knees. At one point as the victim was moving towards one side, the Accused stepped down on the victim’s legs, to hold him down.

The co-Accused was mainly struggling with the victim, at one point pulling the victim’s arm between his legs, while he was trying to pry something out of the victim’s hand. While this was occurring, the Accused stomped on the victim’s face twice. This struggle continued. He stomped the victim in the head. And then, although it is hidden behind the co-Accused’s body, the Accused stomped on the victim’s hand six or seven times. [ 9 ] A number of people from inside the building were watching. A Handi-Transit bus pulled up and passengers were waiting on the bus and watching the assault.

A man came running into the lobby after hearing high-pitched screams and Help! Help! from the lobby. He then took control – he pushed the Accused out of the way and tried to keep him out of the building. The co-Accused was sitting on the victim and was continuing to try to rob him. The good Samaritan had to pull the co-Accused and victim to the side to allow a woman in a wheelchair and her assistant from the Handi-Transit bus to pass. [ 10 ] The Accused came back in. Once the co-Accused got the money, they left. The police arrested the two as they walked away from the building.

The video shows a high, jumpy, erratic and violent Accused who appears to be the “muscle” in the operation, with the co-Accused concentrating his efforts on trying to get the $250.00 back from the victim. He eventually did. When the police arrested the two, $160.00. was found in the co-Accused’s pant pocket and $90.00 in his shoe. The Accused had the victim’s wallet with his identification. [ 11 ] The victim had soreness to his left hand, right eye, knees and his ankle, which is consistent with the stomp to the ankle. He was taken to hospital. The injury to his wrist was significant.

An MRI to the wrist showed tearing to his triangular fibrocartilage complex (TFCC), as well as swelling and fluid in the joint. Mr. Allan suffered from continued discomfort to his wrist. He received treatment at the Pan Am Clinic and the last the Crown heard, he had been referred to an orthopedic surgeon. [ 12 ] The victim is a vulnerable adult; he has an intellectual disability sufficient to make him eligible for CLDS funding, and he has a CLDS worker and utilizes community support services. THE PURPOSE OF SENTENCING [ 13 ]

Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one of more of the following objectives:

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 or to the community. THE SENTENCING OBJECTIVES IN THIS CASE [ 14 ] Striving to meet the goals of respect for the law, and maintenance of a just, peaceful and safe society by imposing a sentence for this offence requires that denunciation is expressed. The video shows a hapless victim, trying to hang onto his money, with the co- Accused sitting on him and trying to get it away from him and Mr. Pulak shimmying and dancing around him like a coked-up boxer, periodically kicking or stomping him.

Several innocent by-standers watched this fiasco going on in their home. Elderly and disabled residents had to walk or wheel around it. Not only was the victim being beaten and robbed, but innocent residents were subjected to this criminal and violent behaviour. It was anathema to a just, peaceful and safe community. [ 15 ] The sentence must also engage the principle of deterrence, mostly specific deterrence to ensure Mr. Pulak refrains from this type of behaviour in future. [ 16 ] The sentence must also be rehabilitative in nature, as Mr.

Pulak is a young man and struggled with drug abuse and addiction as well as alcohol abuse. The offences are all related to this problem. [ 17 ] The sentence must also promote a sense of responsibility in Mr. Pulak and an acknowledgement of the harm done to victims and the community. THE PROPER APPROACH TO SENTENCING FOR THE ROBBERY [ 18 ] The Crown argued that this robbery should be treated like a street mugging where the Manitoba Court of Appeal adopted the Alberta and British Columbia Courts of Appeal’s established range of 12 to 18 months jail. ( R. v.

Okemow , 2017 MBCA 59 ) [ 19 ] I find that this was not a street mugging, which is “a robbery conducted in a public place, typically where the parties do not know each other, and where the motive of the assailant or assailants is to steal the victim’s property.” ( Okemow at para. 116 ) This was a very specific type of robbery where drug purchasers believed they had been defrauded by their drug dealer, and they immediately went to get their money back and in the course of it, assaulted him. But for the actions of the drug dealer, the subsequent robbery would not have

occurred. This is not victim blaming. It is a simple fact.

It is to be distinguished from street muggings where the victims are strangers and have never had any interaction with the offenders. [ 20 ] Accordingly, the range for street mugging-type robberies is not applicable in this case. [ 21 ] While I disagree that this is a street mugging, there are considerations from other robbery cases that are relevant in this case: the seriousness of the victim’s injuries, the proceeds from the robbery, the degree of planning, the use of weapons and the vulnerability of the victim. [ 22 ] In this case, although the victim is a “vulnerable person” within the meaning of disability services in Manitoba, he is not a solitary worker in a convenience store or gas bar, or taxi-cab.

It is well-recognized in law that those classes of individuals are particularly vulnerable to robbery by reason of their solitary occupation and unprotected exposure to the public. Mr. Allan’s relationship with the Accused and co-Accused was dealer and customers. He was involved in criminal activity. That being said, I recognize that he may have been more vulnerable than other individuals in that occupation. [ 23 ] The proceeds from the robbery were modest; the offenders stole back the money they paid for the drugs, and also stole the victim’s wallet. [ 24 ] There was no planning.

There were no weapons. [ 25 ] It appears an injury to Mr. Allan’s wrist is relatively serious, although I did not receive any recent information about the injury; the referral to a surgeon was made over one year ago. It is unknown if Mr. Allan had surgery and whether and how the injury has resolved. [ 26 ] I also take into account that the victim was overpowered by two co-Accused. He was unable to flee or defend himself.

The offence was protracted – over about seven minutes, and was witnessed by other residents and passersby. [ 27 ] An individualized approach to sentencing is always taken, with observance of the fundamental principle set out in

section 718.1 of the Criminal Code , that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. ( R. v. Nasogaluak , 2010 SCC 6 at para. 44 and R. v. Lacasse , 2015 SCC 64 ) [ 28 ] Much of the forgoing has discussed the nature of the offence. [ 29 ] As for the offender, Mr. Pulak did not have a criminal record at the time of the offence, so he is being sentenced for the robbery as a first-time offender. Subsequently, on April 18, 2019, Mr. Pulak was sentenced for breaching his recognizance by not abstaining, and for possession of cocaine.

He received fines of $250.00 and $750.00 for these offences respectively. [ 30 ] He was 23 years old at the time of the offence. He is now 25 years of age. [ 31 ] He has no history of using violence. [ 32 ] A presentence report was filed in this case. Mr. Pulak was born and raised in Winnipeg and lived with his biological family including mother, father and older brother. His parents separated when he was 13 years of age and he is only now seeing his father more. His father had a drinking problem when Mr. Pulak was growing up. Mr. Pulak has struggled with alcohol and drug use since he was 14 years of age.

He started using cocaine at 14 and was almost immediately addicted. His alcohol and drug use has affected his work life and his relationships with partners and family. He was intoxicated on cocaine at the time of this offence. [ 33 ] Being arrested for this offence was not a sufficient wake-up call for Mr. Pulak that his drug and alcohol use was out of control. Even after the offence occurred, he continued to abuse drugs and alcohol. In the spring of 2018, after the offence, he started smoking methamphetamine.

He told the presentence report writer that in the summer of 2018 he finally severed ties with his drug-using friends, some of whom were gang members. Nonetheless, substance abuse appears to have continued to be a problem even in recent months. Mr. Pulak has now pleaded guilty to breaching his recognizance by drinking, and while he was impaired by the drinking, he drove. The drinking and driving offences occurred June 22, 2019. It is notable that the drinking and driving offences occurred during the week that Mr. Pulak was going to have a sentencing hearing on the robbery. When the police arrested Mr.

Pulak on June 22 behind the wheel, he was very intoxicated; it was not a case of being slightly over the legal limit. He was swerving on the road, hitting the gravel shoulder, his eyes were half closed, and he almost fell onto the ground when he bent to pick up the wallet he dropped. [ 34 ] The efforts he has made to address his substance abuse have concentrated on abstinence from cocaine.

His mother told the presentence report writer that she has witnessed a “wonderful change” since the summer of 2018 with respect to his abstinence from drugs, and she agreed with her son that attending Cocaine Anonymous is more important than an alcohol treatment program. But Mr. Vezeau, the Offender’s former employer from Joist Construction, expressed concern not about Mr. Pulak’s drug use, but about his alcohol use. I note that Mr.

Pulak has not attended residential treatment, notwithstanding that he told the presentence report writer in May 2019 that he had applied to attend the Behavioural Health Foundation residential treatment program. [ 35 ] Just before the sentencing was originally to occur, on June 20, 2019, Mr. Pulak had attended nine out of ten sessions at the AFM non-residential treatment program. The AFM check-off report is dated June 17, 2019. A few days later, Mr.

Pulak was driving while highly intoxicated, in breach of his recognizance that required abstinence, and in violation of his graduated licence condition which disallowed any alcohol. [ 36 ] Currently, he attends Cocaine Anonymous meetings on the weekends, when he is in town. [ 37 ] I am not convinced that Mr. Pulak has totally “turned his life around,” but there is certainly improvement. He has taken significant steps, but he appears to continue to have struggles with alcohol.

[ 38 ] His mother’s letter and the other letters of support filed by the Defence, describe a hard-working young man who is skilled. He has let go of his drug friends. He is committed to his infant son. Although he is separated from the child’s mother, they are still friends and he sees the child on weekends. [ 39 ] Mr. Pulak has a grade 12 education, plus Level One carpentry certification from Red River College, graduating from the program with honours. He has worked as a framer for three years. He has had two major employers in the construction industry.

The reports from his employers are glowing, describing a hard-working, talented framer. One of the employers is committed to helping Mr. Pulak start his own framing business. OTHER SENTENCING PRINCIPLES Parity [ 40 ] One of the other sentencing principles in Canadian law is the principle of parity: that similar offenders committing similar offences should receive similar sentences. [ 41 ] Oddly, the co-Accused, Mr. George, pleaded guilty to an assault, not a robbery.

He had not yet been sentenced at the time of this hearing. [ 42 ] The Crown did not file any cases involving offences and offenders similar to this one. As I previously indicated, Okemow , supra , sets out the range of sentences for street muggings where the victim is seriously harmed, but this was not a street mugging, nor akin to that type of robbery. [ 43 ] The defence filed several cases involving robberies where probation or 90-day intermittent sentences were imposed and one case where a six-month sentence was imposed. [ 44 ] No two offences or offenders are identical. The cases bear similarities to Mr.

Pulak’s case. [ 45 ] In R. v. Chand and Lal , 2015 BCSC 484 , an altercation between two groups of people on the street degenerated into a robbery and assaults. While one male restrained one of the victims, Mr. Lal kicked him in the stomach and punched him on the back of the head. He threw the victim on the ground and obtained his wallet. He then punched a second victim in the face and demanded his property. Mr. Lal had a related record and a long-standing addiction problem. Like Mr. Pulak, he did not do well on bail; he committed another offence and was drinking. Unlike Mr.

Pulak, he had a previous criminal record and was not yet working, although was registered in college. Like Mr. Pulak, he had taken some steps towards dealing with his alcohol problem. He was sentenced to 90 days to be served intermittently. [ 46 ] In R. v. Dragani and Bakhtyari , 2018 BCCA 225 , the British Columbia Court of Appeal upheld 90-day intermittent sentences for two youthful, first-time offenders in a case similar to Mr. Pulak’s, but far more serious, because it became essentially a home invasion, where innocent family members were also home.

It was recognized that the sentences were outside the range, but the offenders had demonstrated “exceptional circumstances” sufficient to overcome the application of the main principles of deterrence and denunciation (at para. 71), in terms of their rehabilitative efforts, work and remorse. Both really had turned their lives around. They had also completed the incarceratory portion of their sentences by the time the Court of Appeal heard their case. [ 47 ] R. v. Carlisle , 2018 ONCJ 241 did not involve any physical violence.

The offender walked into a gas bar with his hand in his pocket, said he had a gun and demanded money. He received a 90-day intermittent sentence. Cited in that case is a 1990 robbery case from the Manitoba Court of Appeal, R. v. King , [1990] M.J. No. 414 (C.A.) where a 90-day intermittent sentence was also imposed for a robbery. An important factor for the court was that the offender would lose his job and may not be able to find another job if he were incarcerated for six months to a year steadily. Similarly, Mr. Pulak has steady work and an interruption may well affect his employment.

The level of contrition and good prospects for rehabilitation also informed the court’s decision to uphold what was considered an otherwise lenient sentence. [ 48 ] In R. v. Conlon , 2011 ABPC 259 , the offender and his co-Accused hatched a plan to rob a bottle depot. They wore ski masks and gloves. One of the co-Accused racked and pointed a sawed-off shotgun at an employee, demanding money. The Accused was the look-out man. He had been on restrictive bail conditions for three years, including a curfew, and had not breached one time. He sought and received significant counselling and substance abuse intervention.

He provided a very early guilty plea. He stopped using substances right after his arrest. The sentencing judge stated, “In the instant case, during the almost 3 years the offender has been free, he has accomplished on his own, exactly what society would demand of him for rehabilitation.” (at para. 52) He received a 90-day intermittent sentence. [ 49 ] In R. v. Mariash , 2016 BCSC 759 , the offender was party to a home invasion in which the victim was held at knife-point, while the others ransacked the home. Ms. Mariash’s role was to take items to the waiting vehicle.

She was not part of the planning and was a drug-addicted victim herself, in the throes of a relationship with one of the offenders. She spent 16 days in jail and then entered a residential treatment program. She had a relapse after being in residential treatment, in which she was the victim of a violent crime. She entered another residential treatment program, and then returned to the original residential treatment program.

In imposing an intermittent sentence, the sentencing judge considered her very early guilty plea and cooperation in the proceedings against the co- Accused, her demonstrated commitment to receive intensive counselling and substance abuse treatment, gaining employment and the personal and positive support she has in her life. [ 50 ] In R. v. Meechas , 2012 MBPC 53 , the offender bullied and chased a younger teen who gave up his ipod and ran. There was no physical violence used. The offender was Indigenous, he did not have a substance abuse problem and was a low risk to reoffend.

He expressed his remorse immediately; while he was still in police custody he wrote a letter of apology to the victim. Judge Smith

suspended sentence for a period of 18 months. [51] The offender in R. v. Bajwa was a disgruntled gas station employee who robbed his co-workers. The judge emphasized theplanning involved in imposing a six-month sentence. He wore a ski mask and threatened to stab his colleagues if they did not give himmoney. He had a knife with him, but it was never visible to the victims. He was immediately detained by a K9 officer and requiredstitches on his arm.

The sentencing judge rejected an intermittent sentence primarily because of the planning involved and referred toseveral other cases where judges had imposed intermittent sentences. In R. v. Brooks, 2011 ONCJ 447 , [2011] O.J. No. 4127,an important consideration was the strict bail conditions the offender had been on. [52] It is important to take into consideration mitigating and aggravating circumstances. Mitigating Circumstances [53] Mr. Pulak did not have a criminal record at the time of the robbery. He has significant family and community support. He has asmall child to whom he is committed.

I have read the many letters of support from his community, considered the presentence report andobserved the significant family who came out to the sentencing hearing in Mr. Pulak’s support. [54] He has stopped using cocaine and other drugs. He has taken steps towards rehabilitation. [55] He pleaded guilty, albeit the video surveillance was very strong evidence from the Crown. [56] The presentence report is generally positive. Mr. Pulak is considered a medium risk to reoffend in the presentence report. Aggravating Circumstances [57] I have already discussed the seriousness of the offence.

It is aggravating that this was a two on one assault. It is aggravatingthat innocent by-standers were subjected to the robbery. Restraint [58] I also take the sentencing principle of restraint into account.

Section 718.2(

d) states that “an offender should not be deprived ofliberty, if less restrictive sanctions may be appropriate in the circumstances.” SENTENCE ON THE ROBBERY [59] I have taken into consideration the nature of this robbery and the moral culpability that Mr. Pulak had when he committed theoffence. It was an impetuous, knee-jerk reaction to being “ripped off” by his drug dealer. He was high on cocaine when he committedthe offence. There was no planning – just a knee-jerk response. Mr. Pulak’s state is obvious from the video surveillance – he is hoppingaround and looking very high.

His behaviour is violent, yet he was fairly easily deterred by the man who intervened. [60] He has quit using cocaine and other drugs. He has distanced himself from drug friends and lives a prosocial lifestyle parentinghis young child and working. [61] He goes to Cocaine Anonymous. [62] He is a very successful framer and has steady work. I would be loathe to impose a sentence that would interrupt hisemployment. [63] The Defence filed many cases where intermittent sentences were imposed in circumstances similar to this case, some where thefacts were more serious. Mr.

Pulak’s youth, guilty plea, steps towards rehabilitation, work ethic and prosocial family and other supportall lead me to impose an intermittent sentence. [64] Mr. Pulak will be sentenced to 90 days to be served intermittently on the robbery. Mr. Pulak will be on probation during andfollowing the intermittent sentence, for a period of 18 months. In light of the subsequent offences involving alcohol, and one of hisemployer’s concerns about his drinking, it is important that Mr.

Pulak abstain from all intoxicants. [65] The conditions of the probation order are: - Keep the peace and be of good behaviour. - Report to Probation Services by telephone within the next 48 hours and thereafter as required. - Abstain absolutely from the consumption of alcohol and non-prescription drugs for which you do not have a prescription. - Attend drug and alcohol treatment or programming to maintain your abstinence. - You are to have no contact or communication with Justin Allan and are not to attend to his home, workplace or any place he regularlyattends. - You are to possess no weapons. [66] There are also the following ancillary orders: - The robbery is a primary designated offence; you must provide a sample of your DNA within the next 60 days.

- There is a mandatory weapons prohibition pursuant to

section 109, for a period of 10 years. - There is forfeiture of the items seized. SENTENCES ON OTHER OFFENCES [ 67 ] With respect to the other offences, I am not outlining all the facts, because counsel has agreed that appropriate fines should be imposed. [ 68 ] I take into account that Mr. Pulak spent 18 days in custody. [ 69 ] The fine for the impaired driving offence and the breach of recognizance will be a concurrent fine of $1500.00. The impaired driving offence also results in a one year driving prohibition.

As for driving without a licence, I simply reprimand you, given that you believed your licence was active. You are an adult now. Always ensure that all your licences and registrations with respect to driving, work, insurance and so on are up to date. “Original signed by:” C.A. DEVINE, P.J.