R. v. Sutherland, 2019 NSPC 17

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Sutherland , 2019 NSPC 17 Date: 20190207 Docket: 8170690 Registry: Dartmouth Between: Her Majesty the Queen v. Jesse Mae Sutherland Judge: The Honourable Judge Theodore Tax, Heard: January 22, 2019 & February 7, 2019, in Dartmouth, Nova Scotia Decision February 7, 2019 Charge: Section 465(1) (

c) of the Criminal Code Counsel: Richard Hartlen, for the Crown Attorney Leora Lawson, for the Defence Attorney By the Court: Sutherland - Sentence for Conspiracy to Commit Robbery [ 1 ] Ms. Jesse Sutherland is before the court after having pled guilty to the offence of having conspired with two other individuals to commit the indictable offence of robbery, contrary to section 465(1) (

c) of the Criminal Code . The offence occurred on or about November 22, 2017 in Dartmouth, Nova Scotia. The Crown proceeded by indictment. [ 2 ] On August 22, 2018, Ms. Sutherland elected Provincial Court and pled guilty to the conspiracy charge. A Pre-Sentence Report was ordered, and the sentencing hearing was originally scheduled for November 5, 2018. On that date, Defence Counsel requested an adjournment and counsel made their sentencing submissions on January 22, 2019. [ 3 ] The issue before the court is to determine a just and appropriate sentence for Ms. Sutherland.

Positions of the Parties: [ 4 ] It is the position of the Crown that the offence for which Ms. Sutherland has pled guilty relates to her role in conspiring with two others to rob the victim, which is a serious crime of violence, especially where weapons were used or threatened to be used on the victim.

Since a Conditional Sentence Order (CSO) of imprisonment in the community is not an available sentencing option, the Crown Attorney acknowledges that when the purposes and principles of sentencing contained in sections 718 - 718.2 of the Criminal Code are considered by the Court, there is precedent for a very wide range of sentences. [ 5 ] Given all of the circumstances of the offence and the circumstances of this offender, the Crown Attorney recommends either a short to medium length sentence to be served in a provincial correctional centre or a lower end federal sentence.

The Crown Attorney also seeks a mandatory DNA order under

section 487.051 of the Criminal Code as this is a “primary designated offence.” In addition, the Crown seeks, pursuant to section 109(1)(a.1) of the Code , a mandatory section 109(2) Criminal Code firearms prohibition order. [ 6 ] Defence Counsel acknowledges that the sentence to be imposed for the conspiracy to commit the indictable offence of robbery contrary to section 465(1) (

c) of the Criminal Code , means that Ms. Sutherland is liable to the same punishment as an accused who is guilty of the offence of robbery contrary to section 344(1)(

b) of the Code . As such, the maximum term of imprisonment for this offence is life, however, there is no minimum punishment stipulated by the Code . In those circumstances, a CSO of imprisonment in the community is not an available sentencing option. However, Defence Counsel submits that there are several precedents in relation to the offence of robbery which establish that there can be a very wide range of sentencing sanctions from a suspended sentence to a very

lengthy term of federal imprisonment, depending upon the particular circumstances of the offence and the offender. [ 7 ] It is the position of the Defence that when all of the purposes and principles of sentencing contained in sections 718-718.2 of the Code are considered, the just and appropriate sanction is to suspend the passing of sentence and order Ms. Sutherland to be subject to the terms of a probation order for a period of two to three years with her being subject to restrictive terms and conditions including, house arrest and curfew for a portion of that time.

Circumstances of the Offence: [ 8 ] During the early morning hours of November 22, 2017, after the exchange of several messages between Ms. Sutherland and the victim on an Internet dating site as well as text messages, the victim attended at Ms. Sutherland’s apartment located on Primrose St. in Dartmouth, NS. The victim was a twenty-eight-year-old male, who was not married at the time. The communication over the Internet and the text messaging left the victim with the clear understanding that Ms.

Sutherland was willing to provide sexual services for an agreed-upon price. [ 9 ] Around 4:30 AM, based on the exchange of messages, the victim met Ms. Sutherland outside of her apartment building. They agreed on the amount of $300 in exchange for sexual services. There was apparently also some discussion that some additional money would be used to purchase cocaine. Once they went upstairs into Ms. Sutherland’s apartment, she directed the victim to go into a bedroom and to take off his clothes. After the victim took off his clothes and was lying on the bed, Ms.

Sutherland briefly rejoined the victim in the bedroom and then sent a text message to inform her co-conspirators that the victim had taken off his clothes and was lying on the bed. [ 10 ] Very shortly thereafter, two people burst in the room wearing dark T-shirts tied around their faces. One of those males had a machete in his hand and an air pistol which had been painted black to look like a real firearm. The victim believed that there was a black handgun tucked into one of the male’s waistband. The other male had a fillet knife in his hand.

One of the males threatened the victim with a machete and robbed the victim of the $300 intended for the sex with Ms. Sutherland as well as a further $120 that was in his wallet, his Apple iPhone and an Apple watch. [ 11 ] Ms. Sutherland herself did not carry any weapons nor did she remove any of the money or other items stolen from the victim. Although the victim was certainly threatened by the two males who came into the bedroom, the victim did not suffer any physical injuries as a result of their actions.

After the cash and other items were taken from the victim, the victim was given his clothes and keys to his vehicle, escorted out of the apartment by the two males and told to leave. [ 12 ] Given the fact that Ms. Sutherland had used her name in the e-mail, her name and number in the text messages exchanged with the victim and that the victim had come to her apartment, the Crown Attorney submitted that the co-conspirators plan was probably based upon the fact that the victim, who was a so-called “John” would be too embarrassed to report the incident to the police.

However, the victim stopped his vehicle on the McDonald bridge, spoke to a worker on the bridge and borrowed his phone to call the police. [ 13 ] The police attended at Ms. Sutherland’s apartment a short time later and conducted a high-risk takedown and arrested all of the people in her apartment. There were other people sleeping at various places in the apartment at that time, who were not connected to the conspiracy. After all of the people were removed from the apartment, the police conducted a search of the property under warrant.

During that search, police officers recovered all of the victim’s cash in the exact denominations that he had reported stolen. Police officers also retrieved his iPhone case and the Apple watch which had been damaged. The Apple iPhone was not located. [ 14 ] In a statement provided to the police, a short time after she was arrested, Ms. Sutherland was cooperative with the police and immediately accepted responsibility for her role in this incident. In fact, prior to the police officer having the opportunity to inform Ms.

Sutherland of her Charter rights and provide a police caution, she informed the police officer (and the Crown Attorney agreed in relating the circumstances of the offence to the Court) that she did not know that the co-conspirators would be brandishing weapons when they entered the room to rob the victim. During her statement to the police, Ms. Sutherland was very emotional and crying in stating that she “freaked out” and immediately left the bedroom when she saw the two males enter with weapons to rob the victim.

Circumstances of the Offender: [ 15 ] A Pre-Sentence Report was prepared in late October 2018 for the scheduled sentencing hearing on November 5, 2018. Since that hearing was adjourned, Defence Counsel related updates on that Report to the Court. Ms. Sutherland is now twenty years old, she was nineteen years old at the time of the incident before the court. [ 16 ] Ms. Sutherland’s parents were never married, and she spent most of her youth and teenage years living with her mother and grandparents in Nova Scotia.

However, she moved with her mother to Western Canada so her mother could find employment or to live with a new boyfriend. After some difficulties in the relationship with her mother, she moved in with her grandparents and became close to them. However, her grandfather was removed from the house when he was charged with criminal offences and that had an impact on her. For a short time, Ms. Sutherland resided with her mother, but left there in grade ten to reside with her boyfriend. She had been in a three-year relationship with him, but it ended due to his physical and emotional abuse of her. Ms.

Sutherland described her formative years as being “chaotic” and added that one of her mother’s boyfriends had sexually assaulted her when she was fourteen years old. [ 17 ] At the present time, she resides with her boyfriend and his mother. Ms. Sutherland has very little contact with her father as she feels that he has a history of alcohol and drug problems and has a general disregard for her. She advised the Probation Officer that she has a very limited relationship with her mother.

She remains in a close, positive relationship with her grandmother, but she only sees her occasionally. [ 18 ] The Probation Officer spoke to the mother of Ms. Sutherland’s boyfriend with whom she is residing at this time. Ms. Miller stated that Ms. Sutherland has been in her residence with her son for about nine months. Ms. Miller was “surprised” to learn of the offence before the court. She regards Ms. Sutherland as being very intelligent, helpful around the house and doing very well with the structure that she has provided.

[ 19 ] The Probation Officer also spoke with Ms. Sutherland’s grandmother who stated that she was shocked to hear about the charges before the court. Ms. Newcombe noted that Ms. Sutherland has been seeing a therapist, taking medication and was also interested in improving her education. She also felt that Ms. Sutherland has had mental health issues from a younger age, but they were unable to secure assistance for her. [ 20 ] In terms of her education and training, Ms. Sutherland completed grade eleven at school and was in the process of completing her GED when the Pre-Sentence Report was prepared.

She had moved out of her mother’s house in grade ten and began to work full time as she needed the money to support herself. [ 21 ] Defence Counsel provided an update to the Court which confirmed that Ms. Sutherland has now completed the GED requirements and recently enrolled in an university’s Bachelor of Arts program. According to the registration information, filed as an Exhibit, her selected program has lectures in the morning and afternoon, Mondays to Thursdays. The lectures began during the week of January 7, 2019. [ 22 ] In terms of her employment, Ms.

Sutherland indicated that she had recently obtained a job as a waitress in a restaurant on a full- time basis. She works six days a week and hopes to continue the employment as she enjoys the work. In the past, most of her jobs were in the service industry or at fast food locations. She described that most of those jobs ended due to her poor mental health or the general instability in her life. [ 23 ] Finally, in terms of her health and lifestyle, Ms.

Sutherland acknowledged that she has struggled with her mental health for many areas and she has been diagnosed with anxiety, depression, post-traumatic stress disorder and borderline personality disorder. She had been admitted to the Abby Lane Hospital due to a psychiatric emergency in the past. She plans on attending community mental health in Dartmouth and has started seeing a therapist. Ms. Sutherland plans to continue with that therapist for several more sessions.

She noted that her mental health has been an ongoing issue in her life and that there were previous suicide attempts at age twelve and age fourteen. [ 24 ] The Probation Officer contacted Brittany Eisner, Health Care Social Worker with Community Mental Health who confirmed that Ms. Sutherland had begun therapy sessions with her in September 2018. According to the information filed with the court, they have completed four of the eight sessions that were planned in the treatment agreement. At the end of the initial treatment plan, Ms. Eisner will evaluate the progress and, if needed,

schedule more appointments. The updates from Ms. Eisner filed with the Court confirm that they are working on strategies to assist Ms. Sutherland in managing her emotional reactions and coping effectively with stress. [ 25 ] Ms. Sutherland stated that she does consume alcohol as a social drinker and that alcohol has never been a problem for her, especially because she has seen members of her family struggle with alcohol addictions. She had used cannabis on a regular basis since she was fourteen years old, but stopped using it in June 2018. In the past, Ms.

Sutherland had experimented in other controlled substances and had used cocaine on a regular basis. However, she has not consumed any illegal drugs since her arrest for this offence. [ 26 ] Ms. Sutherland advised the Probation Officer that she used to associate with people who were involved with both drugs and criminal activities. However, since this incident, she has distanced herself from those negative peers and reconnected with old friends who are very positive and attend university. Ms. Sutherland also stated that her boyfriend is a very positive influence on her. [ 27 ] The Probation Officer noted that Ms.

Sutherland was polite and actively engaged in the interview questions, answered all questions posed and took responsibility for her role in the offence. Ms. Sutherland expressed her remorse for her involvement in the incident and added that she “felt terrible” in regretting what had happened to the victim. [ 28 ] The Pre-Sentence Report confirms that Ms. Sutherland has had no prior convictions as a youth or an adult. [ 29 ] In the final analysis, the Probation Officer noted that Ms.

Sutherland has a history of issues with drugs and that her upbringing involved moves to many different locations with different caregivers who were generally unstable and not supportive. She was only “safe” for brief periods in her childhood when she lived with her grandparents. The Probation Officer was of the view that she would be a suitable candidate for community-based supervision given her lack of previous history and that she would have no issues in complying with any conditions that the Court would place upon her. [ 30 ] During her submissions, Defence Counsel noted that Ms.

Sutherland had been placed on a recognizance on November 23, 2017, with her grandmother as a surety. Since then, she has been subject to a curfew from 8:00 P.M. to 6:00 A.M. the following day, seven days per week, with the only exception being a medical emergency. Defence Counsel pointed out that there have been no breaches of that recognizance since it was ordered by the Court. Victim Impact Statement [ 31 ] No Victim Impact Statement was received by the court prior to the scheduled dates for the sentencing hearing . Principles of Sentencing: [ 32 ] The fundamental purpose of sentencing stated in

section 718 of the Criminal Code 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. The imposition of just sanctions requires the Court to consider one or more of the sentencing objectives set out in

section 718 of the Code . Those objectives are denunciation of the unlawful conduct, specific and general deterrence, rehabilitation of the offender, separating offenders from society, where necessary, providing reparations for harm done to victims and promoting a sense of responsibility in the offender. [ 33 ] The fundamental principles of sentencing to be applied by the Court in sentencing decisions, are set out in sections 718.1 and 718.2 of the Code . The Principle of Proportionality –

Section 718.1

[34] In R. v.

C.A.M., (SCC), [1996] SCJ No 28 at para. 91, Chief Justice Lamer stated that the determination of ajust and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moralblameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and currentconditions of and in the community. [35] The Supreme Court of Canada also stated in CAM at para. 92, there is no such thing as a uniform sentence for a particularcrime and that sentencing is a highly contextual and an inherently individualized process.

While there is a principle of parity that asentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, it may beas a “fruitless exercise” to locate those similar situations, given the unique circumstances of the offender and the offence itself in aninherently individualized process. [36] More recently, Justice Wagner (as he then was) of the Supreme Court of Canada in R. v.

Lacasse, 2015 SCC 64 speaking for the majority, reiterated the very delicate nature and balancing required by a judge in making a sentencing decision: “[1] Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss.718 et seq. of the Criminal Code RSC 1985, c.

C-46, and although the objectives set out in those sections guide the court and are clearlydefined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors inorder to meet the objectives being pursued in sentencing.” [37] In R. v. Ipeelee, 2012 SCC 13 at para. 37, the Supreme Court of Canada pointed out that assessing a person’s moral culpabilityis an extremely important function in the determination of any sentence.

This is because the principle of proportionality as set out insection 718.1 of the Criminal Code requires that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. The Supreme Court of Canada also noted that the principle of proportionality is tied closely to theobjective of denunciation, promotes justice for victims and seeks to ensure public confidence in the justice system. [38] Furthermore, in Lacasse, supra, at paras. 53-54, Wagner J. pointed out that the determination of whether a sentence is fitrequires that the sentencing objectives set out in

section 718 of the Criminal Code and the other sentencing principles set out in section718.2 be taken into account. However, the trial judge must properly weigh those various principles and objectives. Justice Wagnerobserved that their relative importance will necessarily vary with the nature of the crime and the circumstances in which it wascommitted. However, Wagner J, concluded that the principle of parity of sentences is secondary to the fundamental principle ofproportionality found in

section 718.1 of the Code, since a sentence must be “proportionate to the gravity of the offence and the degreeof responsibility of the offender.” [39] Justice Wagner added, in Lacasse, supra, at para. 53, that proportionality is determined both on an individual basis, that is, inrelation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed forsimilar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to beproportionate:

section 718.2(

a) and (

b) of the Criminal Code. [40] In this case, the Crown Attorney submits that there ought to be a primary focus on specific and general deterrence anddenunciation of the unlawful conduct. However, he also acknowledges that the Court is required consider the fact that Ms. Sutherland isa very youthful, first-time offender and other mitigating factors which would focus on the purposes of restraint, rehabilitation andpromoting a sense of responsibility in the offender by making reparations to the victim or the community. [41] Defence Counsel does not take serious issue with those primary purposes.

However, she also submits that the court should placean equal focus on the purposes of restraint and emphasize Ms. Sutherland’s rehabilitation through a community-based disposition, giventhe number of mitigating factors and a very positive Pre-Sentence Report. In those circumstances, Defence Counsel submits that it is notnecessary to separate Ms. Sutherland from society and recommends a suspended sentence with a lengthy period of probation, since aCSO of imprisonment in the community is not an available sanction in this case. [42] In addition, Defence Counsel submits that

section 718.2(

d) of the Criminal Code requires the court, in imposing sentence, toconsider the principle that an offender should not be deprived of his or her liberty, if a less restrictive sanction may be appropriate in thecircumstances. This principle of sentencing requires the judge to consider restraint in determining the “just and appropriate” sentence andwhether there are other reasonable alternatives to the imposition of a custodial sentence which might also be appropriate in all thecircumstances. [43] It is also the position of the Defence that the court is also required to take into account

section 718.2 (

e) of the Code, whichrequires the court imposing sentence to consider all available sanctions, other than imprisonment, that are reasonable in thecircumstances and consistent with the harm done to victims or the community, with particular attention to the circumstances ofaboriginal offenders. While there is no doubt that this principle must be considered by the Court in imposing sentence, there is noindication from Defence Counsel or the information contained in the Pre-Sentence Report to indicate that Ms. Sutherland is an aboriginaloffender. Aggravating and Mitigating Circumstances: [44] The sentencing principle contained in

section 718.2(

a) of the Code requires the Court to consider that the sentence should beincreased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [45] I find that the Aggravating Circumstances are: • The conspiracy to commit robbery offence required a significant amount of planning and premeditation to lure the victiminto Ms. Sutherland’s apartment where he was robbed; • Although the victim was not actually physically harmed, there can be no doubt that this robbery was a significant crime ofviolence, which would have had psychological and emotional impacts on the victim;

• The offence was committed by a group of people while the victim was unclothed and completely vulnerable. [46] I find that the Mitigating Circumstances are: • Ms. Sutherland is a very youthful, first-time adult offender who was 19 years old at the time of the offence; • She entered an early guilty plea to the conspiracy charge before any trial dates were set; • Ms. Sutherland has no prior youth or adult convictions; • She cooperated with the police upon arrest and has continued to accept full responsibility for her role in the offence; • Ms.

Sutherland has expressed and demonstrated genuine remorse and regret for her actions; • She has had difficult and unstable family life, growing up in a “chaotic” single-parent household, where she was sexuallyassaulted by one of her mother’s boyfriends when she was fourteen; • At the time of the offence, Ms. Sutherland was in a relationship with a boyfriend who was physically and emotionallyabusive; • Ms. Sutherland has had a long history of and continues to struggle with many mental health issues; • While mental health issues have been an ongoing issue in her life, Ms.

Sutherland recently became involved in therapysessions with a Community Mental Health Worker, who confirmed that she has made great progress and ongoing therapy sessions arescheduled; • Ms. Sutherland has stopped associating with a negative peer group and is in a new relationship with a boyfriend who is apositive, living at his mother’s house where there is structure and strong family support; • Since the incident, Ms. Sutherland has completed her GED requirements, enrolled in University and commenced attendingclasses in early January 2019; • Ms. Sutherland has obtained a full-time job.

In the past, she had been employed, but lost employment due to poor mentalhealth and general instability in her life; • She has been in the community and complied with strict terms of release, including a curfew from 8:00 P.M. to 6:00 A.M.,seven days per week, for almost fifteen months with no breaches. Principle of Parity/Range of Sentences: [47] The principle of parity in sentencing is found in

section 718.2(

b) of the Criminal Code, which requires the court to take intoconsideration, in imposing a sentence, that the sentence imposed should be similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances. In Lacasse, supra, at paras. 56-57, the Supreme Court of Canada stated that the parityprinciple often results in a court establishing a system of sentencing ranges and categories.

Those sentencing ranges establish minimumand maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles andobjectives of sentencing. [48] However, in Lacasse, supra, at para. 58, Wagner J. added that there will always be situations that call for a sentence outside aparticular range since each crime is committed in unique circumstances by an offender with a unique profile which cannot bedisregarded.

While ensuring parity in sentencing is a desirable objective, the determination of a just and appropriate sentence is, as theSupreme Court of Canada has said on many occasions, a highly individualized exercise that goes beyond a purely mathematicalcalculation. In the final analysis, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specialcircumstances of each case.

Sentencing ranges are primarily guidelines, and not hard and fast rules: see Lacasse, supra, at para. 60. [49] During his sentencing submissions, the Crown Attorney noted that the Court would be well aware of several Nova Scotia Courtof Appeal decisions which have established a range of sentence of two to three years imprisonment in a federal institution for robberyconvictions. However, he also noted that there were several mitigating circumstances present in this case, and provided cases whichwould also support a range of sentences to be served in a provincial correctional centre. [50] In R v.

Scott, (NS CA), 1996 NSCA 165, the offender, who was then twenty years old, appealed a sentenceof two years less one day in jail to be followed by twelve months on probation for a robbery charge. She had no prior criminal record.She had a difficult upbringing due to her physical and mental health issues, her mother’s abuse of alcohol and being sexually abused by amember of her family. She left school at age sixteen to move to Calgary and soon after, began a relationship with a twenty-seven-year-old man who was the father of her young children. [51] In terms of the robbery charge, Ms.

Scott’s boyfriend and a companion robbed two employees at a Petro Canada service stationof about ninety dollars. The victims were sprayed with pepper spray and were threatened with a shotgun. Ms. Scott’s boyfriend and theaccomplice escaped in a stolen car and by prior arrangement, met Ms. Scott. She was driving another car with her two young children. Asecurity guard observed the switch of cars, alerted the police and a short time later, Ms. Scott was arrested and charged with two countsof robbery. [52] Shortly after the charges were laid in Calgary, Ms.

Scott ended the relationship with her boyfriend and returned to Nova Scotia.The charges were transferred to Nova Scotia and she pled guilty to one count of robbery. [53] At the sentencing hearing, which was about a year after the robbery, Ms. Scott had reestablished a relationship with her mother,

had support from her extended family, a new boyfriend who was a positive influence and she was attending a computer course at university. In short, Ms. Scott had changed her life significantly and had embarked on a positive lifestyle. She had served about one month in custody prior to the Court of Appeal hearing. [ 54 ] The Court of Appeal allowed her appeal and substituted a suspended sentence and a probationary term for three years for the sentence ordered by the trial judge.

Pugsley JA noted in Scott , supra , at paras. 19-20 that the sentencing judge was quite right to observe that cases involving robbery with violence in this province generally attract a three-year sentence, however, there are “exceptions” to the norm.

Therefore, the court should not adopt an “inflexible approach” as there are almost invariably different circumstances in each offender as well as the differences in the manner in which the offence was committed. [ 55 ] Pugsley JA concluded in Scott , supra , at para. 23 that a period of imprisonment would be “extremely detrimental to her rehabilitation” and would obviously affect the family relationship which appeared to be stable. The protection of the public, could, in his opinion, be best be served by fostering her rehabilitation and reformation.

Pugsley JA also stated in Scott , at para. 28 , that there is a deterrent effect with the order of a suspended sentence which, properly administered, can have substantial consequences. [ 56 ] In R. v. Lapointe-Melo , 2010 ONCJ 314 , the accused was sentenced for his

part in a robbery. The accused and his accomplices planned a fake drug deal to lure and rob the victims. He knew that his accomplices would be masked and carry BB guns. He participated in the offence because he had a debt with one of his co-accused, who insisted that he pay back the debt by participating in the offence. The accused held down one victim while his accomplice kicked and punched the victim and tried to remove his backpack. The accused was a twenty-three-year-old, first-time offender who expressed profound remorse, had a positive PSR with several positive character witnesses.

The sentence imposed by the court was thirty days incarceration to be served intermittently followed by one year of probation. [ 57 ] The Crown Attorney also referred to R v. Kotelko and Lindell , 2011 MBPC 76 , who had pled guilty to having committed a robbery. Both were youthful first offenders, Ms. Lindell was eighteen years old, while her boyfriend Mr.

Kotleko was twenty-one years old when the offence occurred in 2007. [ 58 ] The Crown sought a penitentiary sentence while Defence Counsel sought a community-based disposition as a CSO which would not have been statutorily barred by the Criminal Code if the Court agreed that this was not a “serious personal injury offence” as defined in

section 752 of the Code . [ 59 ] The offence itself was committed in rather unusual circumstances. The offenders were boyfriend and girlfriend at the time and Ms. Lindell was working as an assistant manager at a Dollarama store. They planned a theft from the store to be staged as a robbery of Lindell by her boyfriend, Kotelko. The robbery was planned to pay for their lifestyle as Mr. Kotelko was spending about sixty dollars a day on alcohol for the both of them and marijuana for himself. Ms. Lindell was drinking heavily at that time. [ 60 ] As planned, Mr.

Kotelko arrived at the store and went to a back office, where the money was counted, wearing a balaclava with a knife in his pocket. He knew that Ms. Lindell would be in that room counting money. Mr. Kotelko knocked on the door, provided the name of the district manager which had been given to him by Ms. Lindell and she let him in. [ 61 ] Upon entering that back office, Mr. Kotelko was surprised to find that Ms. Lindell was there with another employee. However, he directed both women to the ground, said that he had a knife and cut the phone line before he left the room.

It was an agreed fact that the knife had not been pointed at anyone or used in a menacing way, it was only used to cut the telephone cord. Mr. Kotelko grabbed three thousand dollars in cash and pulled Ms. Lindell out of the room with him, as planned, so that she could enter the code to open the back door of the building to let him out. [ 62 ] After the robbery, Ms. Lindell maintained the fiction that she was a victim, called 911 and falsely reported that she had been robbed. Mr. Kotelko kept two thousand dollars and Ms.

Lindell received one thousand dollars, but the crime soured their relationship and they split up. [ 63 ] About a year after the staged robbery, the police received information which indicated that Ms. Lindell was a party to the offence. The police called her in for a meeting, which she voluntarily attended and made an immediate and full confession. The police also called Mr. Kotelko to come to the station for a meeting which he voluntarily attended and also made a full confession.

Their confessions were the only evidence against them. [ 64 ] The judge noted that both were clearly remorseful and had pled guilty without going through any preliminary hearing. No explanation was provided for why the guilty pleas were entered approximately four years after the offence. The judge also noted that both accused had been out of custody since their arrest and that the detailed PSR’s filed at the sentencing hearing demonstrated that they had made significant, positive changes in their lives. [ 65 ] At the time of the offence, Ms.

Lindell was eighteen years old and in a dating relationship with the twenty-one-year-old co- accused. Their lifestyle was characterized by excessive drinking which impacted their finances and clear thinking. Since the offence, Ms. Lindell matured and had made many positive changes in lifestyle, including making partial restitution. She was in a three-year relationship and engaged to be married to a man who was a very positive influence in her life. [ 66 ] The PSR contained comments from collateral sources who indicated that the offence was totally out of character. The report also noted that Ms.

Lindell was the mother of a twenty-two-month old girl, had stopped her partying lifestyle and had a positive assessment, which indicated that no counselling or programming was required to address any alcohol issues. Ms. Lindell also obtained a full-time job, had positive work references and had plans to attend university. Probation Services recommended a community-based disposition as she was seen as a low risk to reoffend. [ 67 ] Mr. Kotelko had grown up in a very stable and positive family environment.

He had graduated from high school, registered for community college but his alcohol and drug use caused his attendance to suffer so he withdrew from the program. At the time of the offence, Mr. Kotelko was an immature twenty-one-year-old, who had been drinking heavily and smoking marijuana on a daily basis.

[ 68 ] The PSR noted that he had completely stopped smoking marijuana, decreased his use of alcohol and had recently completed an addictions assessment which confirmed a “low probability of substance dependency” and that no services were being recommended. Mr. Kotelko had become a self-employed contractor for residential renovations and before that, he had been a full-time employee with the construction company. He was engaged to be married and his partner was very supportive. Sources contacted by the Probation Officer confirmed that the offence was totally out of character and that Mr.

Kotelko regularly expressed his remorse and regret for his actions. He had already paid his share of the restitution in full. [ 69 ] At the time of the offence, Mr. Kotelko had no prior record. The Probation Officer assessed Mr.

Kotelko as a low risk to reoffend and Probation Services also recommended a community-based sentence for him. [ 70 ] After considering the aggravating factors and several mitigating factors for both offenders, the Court concluded that a suspended sentence would not be appropriate to the gravity of the offence, considering the aggravating factors and each offender’s degree of responsibility.

On the other hand, the Court also found that a sentence in excess of two years of imprisonment, as recommended by the Crown, would be “seriously disproportionate to the particular circumstances of these youthful first offenders and their unique circumstances of this offence.” [ 71 ] The Court ordered each of the two offenders to serve a sentence of four months of imprisonment plus pay a fine of two thousand dollars. The Court did not distinguish between the offenders as the Judge found them to be equally blameworthy because Mr. Kotelko wore a mask and brought the knife in his role as the robber, while Ms.

Lindell had breached the trust placed in her by her employer by plotting the staged robbery with Mr. Kotelko. [ 72 ] In support of her sentencing recommendation for a lengthy suspended sentence which would be a community-based sentence that emphasized Ms. Sutherland’s rehabilitation and promoting a sense of responsibility in her, Defence Counsel highlighted decisions from Nova Scotia and elsewhere. [ 73 ] In R v. Mason Simonot which was an unreported decision made by my colleague Judge Sakalaukus on December 20, 2017, the accused pled guilty to an attempted armed robbery of a convenience store.

The accused walked into the convenience store at approximately 3:00 A.M. on July 3, 2017, went to the back of the store picked up some energy drinks then approached the clerk at the counter and said: “this is a robbery, give me all the money.” The clerk refused to do so, and the accused ran out of the store. A friend of the clerk who was outside the store apprehended the accused on a citizen’s arrest.

The accused remained with the clerk’s friend, was cooperative with him as well as the police when they arrived. [ 74 ] The Court noted that the offender had been in custody for a total of two hundred and fifty-five days or eight and a half months with enhanced credit and took into account that he was a twenty-six-year-old man who was single with no prior criminal record.

He had struggled with mental health issues for a long time which had never been treated, had completed high school and had unsuccessfully attempted to attend university courses on several occasions. [ 75 ] The Court concluded that the offender’s moral culpability for the offence was at the low-end for this charge, since the robbery involved an implied threat of violence and that, after a Gardiner hearing, the Court concluded that the Crown did not establish an allegation that the accused had held his hand in the shape of his handgun during the offence.

As a result, the court ordered that the custodial portion of the sentence was deemed served by the offender’s enhanced pre-sentence custody credit and he was placed on three years of probation to focus on the offender’s reformation and rehabilitation. [ 76 ] In R. v. Barrons, 2017 NSSC 216 , Arnold J. imposed a suspended sentence on the offender who had pled guilty to breaking and entering a residence of his ex-girlfriend, knowing it was occupied and committing an assault on a man who was with his ex- girlfriend in September 2014.

The Crown had sought a penitentiary sentence of two years while Defence Counsel had recommended a suspended sentence and probation.

In imposing the suspended sentence, the Court made note of an early guilty plea, the offender had no prior criminal record, and was youthful, being only twenty-four years old at the time of the offence. [ 77 ] While the Court noted that this was a serious offence which involved a home invasion and assault with a domestic undercurrent, the Court also highlighted the fact that, in the three years since the incident, the offender had done extremely well in university, was accepted into law school and had voluntarily engaged in bi-weekly counselling sessions regarding healthy relationships.

He had also been subject to strict release conditions including a curfew with a “no alcohol” condition and he did not breach any of those conditions during the three years from the time of his release to the sentencing hearing. Moreover, he had the full support of his family and had been active in the community volunteering his time with different organizations. [ 78 ] In the final analysis, the Court concluded that, in the circumstances of the offender and the offence, a penitentiary sentence was not required to achieve the purposes of denunciation and general deterrence in this case.

Taking all of the significant mitigating factors into account and the fact that the offender had been subject to strict release conditions for three years, the Court ordered a suspended sentence and probation for an additional three years, noting that the Court of Appeal had concluded that denunciation and deterrence could be accomplished by way of a suspended sentence.

The conditions and terms of the probation order included a curfew from 10:00 P.M. to 6:00 A.M. for the first twenty-four months and the requirement to complete two hundred hours of community service within the first eighteen months. [ 79 ] In R. v. Boudreau , which was an unreported decision of my colleague Judge Claudine McDonald on January 29, 2015, the transcript indicates that Ms. Boudreau had pled guilty to a break and enter into a dwelling house, knowing that it was occupied and therein, committed an indictable offence.

The transcript does not contain any details with respect to the circumstances of the offence other than the fact that Ms. Boudreau was co-accused with three other individuals who had earlier received sentences of four years, ninety days and thirty days in custody. While the Court noted that this was a very serious offence which often results in lengthy periods of incarceration, Ms. Boudreau had, like the other offenders who had received the short provincial sentences, played a minor role in the incident. [ 80 ] The Gladue report detailed Ms.

Boudreau’s background as well as her family’s background and the community in which she was raised. At the time of the sentencing, she was a single mother of two young children had served as a member of the Canadian Forces

for several years. Ms. Boudreau had been released from the Canadian Forces as a result of Post-Traumatic Stress Disorder, which led to difficulties in adjusting to civilian life and losing custody of her children. The court concluded that Ms.

Boudreau’s moral culpability for the offence was reduced due to her suffering from a significant mental illness of PTSD and depression which affected her decision- making, at the time of the incident. [ 81 ] In the final analysis, MacDonald J concluded that, in the “unique circumstances” of the offender and the offence itself as well as the fact that sentencing is an individualized process, the public would be protected by her serving the sentence in the community under the terms of a probation order.

Once again, the Court noted that the case was “unique” and that all of the objectives of sentencing could be met by something other than a custodial sentence. In suspending sentence and placing Ms. Boudreau on probation, the Court stated that the Crown could apply to revoke the probation order and have her sentenced for the offence, if there was any breach of the terms and conditions. After noting that Ms.

Boudreau had been subject to strict terms of house arrest for a significant period, the Court ordered the first six months of the probation order to be subject to house arrest with the remainder of the probation order being subject to a curfew between the hours of 10:00 P.M. and 6:00 A.M. the following day, with very limited exceptions. [ 82 ] After having reviewed all the sentencing decisions provided by the Crown Attorney and Defence Counsel as well as my own review of sentences imposed for the offence of robbery, I agree with their submissions that can be a very wide range in the sentences imposed by a court from a suspended sentence to a federal sentence in the range of two to three years. [ 83 ] From my own review of the cases and the precedents provided by counsel, I find that, where a community-based disposition has been ordered by the court, the offender’s degree of responsibility or moral culpability for the offence has been reduced by some “unique circumstances” of the offender and/or the commission of the offence itself.

Moreover, in most of those cases, I find that there are several mitigating factors with relatively few aggravating factors, which led the Court to conclude that the offender’s separation from society was not required to emphasize the purposes of deterrence or denunciation of the unlawful conduct. [ 84 ] As I mentioned previously,

section 718.1 of the Code sets out the fundamental principle of proportionality in sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Put another way, the imposition of a just and appropriate sentence should not be disproportionate to the gravity of the offence and the offender’s degree of responsibility. [ 85 ] The gravity of the offence is generally determined at the time that the offence was committed and is informed by what Parliament has determined as the range of sentence which includes any statutory minimums as well as the maximum sentences provided by the Criminal Code . In this case, Ms. Sutherland has pled guilty to the charge of being a party to a conspiracy to commit the indictable offence of robbery contrary to section 465(1) (

c) of the Criminal Code . She is therefore liable to the same punishment as an accused who is guilty of the offence of robbery contrary to section 344(1)(

b) of the Code which is subject to a maximum of life imprisonment. As such, the gravity of this offence is very high. However, since no firearm was involved in the commission of the offence, no minimum punishment has been prescribed by Parliament. [ 86 ] With respect to Ms. Sutherland’s degree of responsibility or moral blameworthiness for this offence, it is primarily informed by the circumstances existing at the time of the offence and not necessarily by whether the offender was remorseful or has rehabilitated after the incident.

While a conviction for conspiracy requires some level of deliberation and planning, this plan was by no means sophisticated as Ms. Sutherland made no attempt to mask her identity by using her Internet mail account and exchanged text messages with her name and cellphone number and then arranged to meet the victim and lure him into her own apartment.

It was inevitable that she would be identified by the victim and arrested unless the victim was too embarrassed to report that he had been robbed while attempting to purchase sex from a young nineteen-year-old girl. [ 87 ] Furthermore, when I consider that she had no idea that any weapons would be involved, let alone utilized by the co-conspirators in the incident, as well as her long-standing struggles with mental health at the time of this incident, her PTSD symptoms and being subject to emotional and physical abuse by her boyfriend and that her role was essentially as “bait” to lure the victim into her house to purchase sex, I find that Ms.

Sutherland’s degree of responsibility for this offence is at the lower end of the continuum of moral blameworthiness. The Just and Appropriate Sentence: [ 88 ] As I have indicated, while I find that the gravity of the offence is very high given the fact that Ms. Sutherland is liable to life imprisonment, after having considered the unique circumstances in which the offence was committed and the unique circumstances of the offender, I have also found that her moral blameworthiness or degree of responsibility for the offence of conspiracy to commit a robbery contrary to section 465(1)(

c) of the Code is at the lower end of a continuum of blameworthiness or responsibility. [ 89 ] Furthermore, in considering the other sentencing principles that are applicable in the circumstances of this case, I find that there are relatively few aggravating circumstances, but there are numerous mitigating circumstances which collectively point to the fact that she has made significant progress in dealing with her mental health issues and taken many rehabilitative steps towards being a positive and productive member of society. When I also consider that Ms.

Sutherland has been on restrictive terms of release with a curfew from 8:00 P.M. to 6:00 A.M., seven days per week for almost fifteen months without any breaches, I am satisfied that she has shown an ability to comply with even the most restrictive court orders. [ 90 ] Parliament has stated, in

section 718 of the Criminal Code 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 which include the objective in 718(

c) to separate offenders from society, where necessary. That purpose is also expressed as a principle of restraint found in sections 718.2(

d) and (

e) of the Code, which require the court to consider that an offender should not be deprived of liberty if a less restrictive sanction may be appropriate in the circumstances and that all available sanctions, other than imprisonment, that are reasonable in the circumstances, should be considered. [ 91 ] Our Court of Appeal has indicated that an offender’s rehabilitation continues to be a relevant objective, even in those cases where deterrence and denunciation are to be emphasized. In R. v. Bratzer , 2001 NSCA 166 , which involved an appeal of a conditional

sentence order of imprisonment in the community for a youthful offender convicted of three counts of robbery.

In Bratzer, Bateman JAstated, at para. 40 that there is ample authority for the proposition that sentences for youthful offenders should be directed atrehabilitation and reformation, not general deterrence. [92] Given the very positive nature of the Pre-Sentence Report and the prospects for rehabilitation as well as promoting a sense ofresponsibility in the offender, the Court must also consider the principle of restraint and that the sentence imposed by the court shouldconstitute the minimum necessary intervention that is adequate in all of the circumstances: See R. v.

Priest (1996) (ON CA), 110 CCC (3rd) 289 [Ont. CA]. [93] Based upon the rather unique circumstances of the offence and the offender when coupled with the numerous mitigatingcircumstances which are present in this case, I conclude that the principles and purposes of sentencing, including denunciation, specificand general deterrence certainly do not require Ms. Sutherland to be incarcerated in a federal penitentiary.

I also conclude that the justand appropriate sanction in this case does not, in my considered opinion, require her to be separated from society and to be incarceratedfor a shorter period of custody in a provincial institution. [94] While a CSO of imprisonment in the community might have achieved all of the purposes and principles of sentencing that theCourt is required to take into account in this case, pursuant to the provisions of

section 742.1 of the Criminal Code, that sentencingoption is statutorily barred in the circumstances of this offence. [95] I find that there are many similarities between the facts and circumstances of the offence and the offender present in this caseand in the Scott case, which was decided by our Court of Appeal. Ms. Scott, like Ms. Sutherland, played a supporting role in the robberybut was not involved in the actual violence or threatened violence inflicted on the victim. In terms of their background and personalcircumstances, both Ms. Scott and Ms.

Sutherland had a difficult upbringing, mental health issues and were sexually abused at a youngage by a member of their family. Both women were in relationships at the time of the incident with partners who were physically andemotionally abusive. [96] Since the incident, Ms. Sutherland, like Ms. Scott, has significantly changed her life and embarked on a positive lifestyle. She isin a positive relationship with her boyfriend and his mother, which provides her with a supportive family, she has removed herself fromnegative peers and has completed her GED and enrolled in University.

Moreover, although she has struggled with mental health issuesfor a long time, she has now connected with the therapist to address and manage those issues. As the Nova Scotia Court of Appeal statedin Scott, I find that the imposition of a period of imprisonment, at this time, would be “extremely detrimental to her rehabilitation.” Theprotection of the public can best be served by fostering her rehabilitation and reformation. [97] In the final analysis, I conclude that suspending the passing of sentence and placing Ms.

Sutherland on probation for a period ofthirty-six months will, in both the short and long-term, have a significant deterrent effect as mentioned by our Court of Appeal in Scott,supra. However, I also conclude that placing her on strict terms of probation will provide the counselling and programming that willallow her to continue with the significant progress that she has made towards her rehabilitation and being a productive member ofsociety.

Moreover, a suspended sentence allows for the possibility of re-sentencing the offender for this offence should there be anybreaches of the probation order, whereas a short custodial sentence in a provincial institution would not. [98] As my colleague Judge Buckle noted in R. v.

Rushton, 2017 NSPC 2 at para. 100, after imposing a suspended sentence for ayouthful offender who pled guilty to the possession for the purpose of trafficking cocaine and cannabis contrary to section 5(2) of theCDSA, the suspended sentence and placing the offender on probation is the best means to accomplish long-term protection of the public.The imposition of suspended sentence provides a meaningful incentive to the offender to continue their efforts towards rehabilitation.

Ifthe offender complies with the terms of probation, he or she can continue their rehabilitation, however, if there is a breach, the offendercan be brought back before the Court to be sentenced for the offence. In that way, it can also provide deterrence and denunciationwithout interfering with all the offender’s recent accomplishments towards rehabilitation. [99] Therefore, I hereby suspend the passing of sentence for the offence of conspiracy to commit a robbery contrary to section465(1)(

c) of the Code and place Ms. Sutherland on probation for a period of thirty-six months. The conditions of the probation ordershall be as follows: • the statutory conditions, including to appear back before the court as and when required to do so by the court in order forthe Court to monitor Ms.

Sutherland’s progress while on probation; • report to the probation officer today and thereafter as directed; [100] And in addition to those statutory conditions, you shall: • reside within the four corners of the property located at 50 Pinecrest Dr. in Dartmouth, NS until February 16, 2019 andthereafter, at 61 Prince Albert Rd. in Dartmouth, NS unless permission to reside elsewhere is obtained from the court; • not to possess take or consume alcohol or other intoxicating substances; • not to possess, take or consume a controlled substance as defined in the Controlled Drugs and Substances Act except inaccordance with a physician’s prescription for you or a legal authorization; • not to have in your possession any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunitionor explosive substance; • complete one hundred and fifty (150) hours of community service work by January 31, 2021 as directed by your probationofficer; • attend for mental health assessment and counselling as directed by your probation officer;

• attend for substance abuse assessment and counselling as directed by your probation officer; • attend for assessment counselling or a program as directed by your probation officer • participate in and cooperate with any assessment, counselling or program directed by your probation officer; • not to associate with or be in the company of the following persons: any one known to you to have a Criminal Code record, except incidental contact in an education or treatment program or while at work and except for Shawn Miller or Roy Newcombe; • not to have any direct or indirect contact or communication with Tristen Gary Drake or Mitchell Rice and there are no exceptions; • make reasonable efforts to locate and maintain employment or an education program as directed by your probation officer; • for the first twelve months of this order, comply with terms of house arrest which will require you to remain in your residence at all times beginning at 6 PM on February 7, 2019 and ending at 11:59 PM on February 6, 2020, subject to certain reasonable exceptions which will be indicated in a moment. • for the second twelve months of this order, comply with a daily curfew to remain in your residence between 11 PM and 6 AM the following day, 7 days per week, with reasonable exceptions; • The final twelve months of the order will be subject to the all of the other terms and conditions of this probation order. [ 101 ] The exceptions listed below are primarily applicable to the period of time while you are on house arrest, but they may also be applicable, as the case may be, during the period of time while you are subject to the curfew from 11:00 P.M. to 6:00 A.M. curfew.

The exceptions will be as follows: • when at regularly scheduled employment, which the probation officer knows about, and travelling to and from that employment by direct route; • when attending a regularly scheduled education program, which your probation officer knows about, or at school educational activities supervised by a principal or a teacher, and travelling to and from that education program or activity by a direct route; • when dealing with medical emergency or medical appointment involving you or member of your household and travelling to and from it by a direct route; • when attending a scheduled appointment with your lawyer or your probation officer and travelling to and from the appointment by direct route; • when attending court at a scheduled appearance or under subpoena, and travelling to and from the court by direct route; • when attending a counselling appointment, treatment program or meeting of organizations like Narcotics Anonymous or Alcoholics Anonymous, at the direction of or with the permission of your probation officer, and travelling to and from that appointment, program or meeting by a direct route; • when attending a regularly scheduled religious service with the permission of your probation officer and travelling to and from that service by direct route; • when making applications for employment or attending job interviews, Monday through Friday between the hours of 9:00 A.M. and 5:00 P.M., travelling to and from those appointments or meetings by a direct route; • for not more than eight (8) hours per week, approved in advance by your probation officer, for the purpose of attending to your personal needs; • when performing community service work arranged with your probation officer and travelling to and from the location by a direct route; • such other absence from the residence which was approved, in advance, in writing, by your probation officer. • Finally, you are required to prove compliance with the house arrest and curfew conditions by presenting yourself at the entrance to your residence should a peace officer or your probation officer attend there to check compliance. • In addition, at any time that you are outside of your residence, you are to carry a copy of this order on your person and present it to any peace officer on request. • In addition, I am also ordering that Ms.

Sutherland report back to the Court after twelve months of probation for a status update on her progress in completing community service work and any recommended assessments, counselling or programming. [ 102 ] The Crown Attorney has sought two ancillary orders which are not contested by Defence Counsel. Therefore, I hereby order the mandatory section 109(2) Criminal Code ten-year firearms and weapons prohibition order as well as a mandatory DNA collection order for the databank pursuant to

section 487.051 of the Criminal Code . [ 103 ] Since the decision in R. v. Boudreault , 2018 SCC 38 , the Court is not required to impose the surcharge for victims.

Theodore K. Tax,, JPC