2016 MBPC 39, 2016 MBPC 39

Cite: 2016 MBPC 39 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Shaun Sass, ) Kristee Logan, - and – ) for the Crown ) Mark Andrew Arnaud, ) Mike Cook, Accused ) ) for the Accused ) Judgment delivered: July 25, 2016 ) R.L. POLLACK P.J. [ 1 ] Mark Andrew Arnaud is a thirty-year-old offender who is to be sentenced for committing three robberies. On April 9, 2015 he robbed a frightened woman of her vehicle in a mall parking lot (“the car-jacking”), on April 11, 2015 he robbed a bank using a note that he had a gun and on April 14, 2015 he used the same note to rob another bank.

He was arrested the following day without incident and made a full confession. Since then he has served four hundred and sixty-six days of pre-sentence detention. [ 2 ] Mr. Arnaud is not a first offender. Indeed, the day before his first robbery he was released after serving one hundred eighteen days at Milner Ridge Correctional Centre (“MRCC”) for three counts of possession of stolen property and one count of theft - all under $5,000, driving while disqualified, supplying liquor to a minor and failing to attend court.

Upon his release he was to commence a two- year term of supervised probation which included being forbidden from occupying the driver seat of a motor vehicle. Earlier Criminal Code entries are for harassing telephone calls and uttering threats for which he received a suspended sentence and community service in 2011 and a count of theft under $5,000 from an employer and failing to attend court for which he was fined in 2010; that theft occurred in 2006 but he was not apprehended until 2010. [ 3 ] In addition to the detailed statement provided by the offender upon his arrest, there was strong evidence in each case.

Although the car-jacking victim was unable to identify the suspect in a photograph lineup, she gave a clear description of his clothing and he can be seen wearing that clothing in his own Facebook photograph. And his fingerprint was left on a cup in the vehicle. The victim thought that she saw the handle of a black handgun as Mr. Arnaud instructed her “give me your keys” twice and told her “you’ll get your car back”. He left in the stolen vehicle and the victim immediately made a 911 call. Police spotted the vehicle and pursued it but the driver’s erratic driving prompted them to abandon the chase.

In describing what happened, the victim did not describe someone who appeared intoxicated although she thought that he appeared to be “psychotic”. [ 4 ] Two days later Mr. Arnaud entered the Bank of Montreal branch on McPhillips Street and presented a teller with a note stating that they were being robbed and that he had a gun. No gun was seen but, upon Mr. Arnaud asking for money, the teller obtained $500.00 from a bank machine and gave it to him. He took back his note and fled. Video recording clearly depicts him without any disguise. [ 5 ] Three days after that Mr.

Arnaud entered the Royal Bank on Main Street and encountered a teller, who was on her first day of training, and presented her with his hold-up note. She did not know what to do and had to refer him to another teller. As she handed the note to a second teller the robber said: “Make sure it’s quiet and everyone goes home safe”. He was seen to be grabbing at something in his waist although no one saw a weapon. He was given $280.00 with a dye pack that did not activate and it was thrown in the garbage. Again he made no attempt to disguise himself.

No staff from either bank described him as being intoxicated. [ 6 ] By this time police knew who they were looking for and, the next day, at about 4:00 p.m., Mr. Arnaud was seen walking outside a restaurant wearing the same shirt that he wore to the Royal Bank robbery. Police ordered him to stop and he obeyed their instructions as they took him into custody. He was carrying $160.00 in twenty dollar bills. [ 7 ] A Pre-sentence Report describes the offender as someone who has experimented with and used street drugs since his teenage years.

He told the probation officer that he began using drugs fourteen hours after his release at 8:00 a.m. on April 8, 2015 and that, for the next week, he was using alcohol, cocaine and crystal methamphetamine. The Report includes this sentence: Mr. Arnaud stated he feels disappointed and ashamed of his actions and declared he would not have committed the offences if he was not using cocaine and crystal methamphetamine. That is not exactly what he told the police. He told the police that, since being released from MRCC he was “clean” but needed food and a place to stay.

He said that, when he spotted the woman at the mall, it was difficult for him to rob her but he needed a place to sleep.

He told the police that he drove out to Lockport and slept in the vehicle that night. They say that he made no comment about feeding his addiction in the interview. [ 8 ] Collateral sources corroborated this offender’s drug use although they told the probation officer that they were unaware of the extent of his addiction. A previous employer also provided some corroboration with an anecdote that was consistent with an employee having to support a drug habit. [ 9 ] Mr. Arnaud told the probation officer that he attended Narcotics Anonymous and Alcoholics Anonymous meetings at MRCC.

Two correctional officers involved in those programs could only corroborate his attendance at one or two meetings between January and the beginning of April, 2016. The probation officer does not consider Mr. Arnaud as having participated in any treatment program to date but Behavioural Health Foundation has told him that Mr. Arnaud would be accepted into their residential program once he returned to the community. [ 10 ] A common theme among correctional officers and the Pre-sentence Report writer is this: Mr.

Arnaud is at the entry level of rehabilitation but still lacks the insight necessary to immerse himself in some serious addiction treatment to enable him to become a productive citizen. Interestingly, an experienced probation officer finds him to be a suitable candidate for supervision in the community and, being an experienced probation officer, would know that a probation supervision component would limit my sentence to two years less a day. [ 11 ] His parents, a sister and an aunt and uncle were with Mr. Arnaud in the courtroom.

It must have been agonizing for them to hear the prosecution suggest that a sentence of nine years (less time served) would reflect consideration of the totality principle. Knowing that parts of Mr. Arnaud’s upbringing were unhappy ones, it must have been heartbreaking for them to hear his lawyer suggest that, even after serving the functional equivalent of almost two years in jail, incarceration should be extended by another two years with a three-year probation order to follow. [ 12 ] Adding to the factual narrative, defence counsel pointed out that Mr.

Arnaud was ripe for rehabilitation when he was released but the place he found to live in was just a party house where drugs were prevalent and available to him. Counsel stressed the fact that, despite the threats posed, no weapons were involved and no violence was directed against any person.

Relying upon the potential for rehabilitation implied by the Pre-sentence Report, counsel seeks “a more humane sentence”, without reference to precedent, based upon the rehabilitative potential of his client. [ 13 ] The prosecution cite a number of cases in which car-jacking offences standing alone attract sentences of three or four years and bank robberies more than that.

The prosecution assessment is consecutive sentences of three years for the automobile robbery and four years for each of the bank robberies, totalling eleven years, but they concede that application of the totality principle should reduce that to nine years. [ 14 ] Defence counsel referred to the offences as “a spree” at one point in his submission. While there may be a sub-set of sentencing principles applicable to a series of offences that blend from one to another, that is not the case here and, following Steele JA’s procedure in R. v.

Draper , 2010 MBCA 35 , it is my conclusion that consecutive sentences are called for where offences are committed on three different dates in three different places with three separate victims. [ 15 ] In R. v. daSilva and Metropolit , [2000] O.J. No. 739 (Ont. S.C.) , Locke J wrote this about robbery of a vehicle: 21. Law abiding Canadians, from coast to coast in this country place their highest value in life, on family, home and economic security, I venture to say in that order. Protection and the securing of home and family must receive very high priority in our criminal justice system.

If it were otherwise, the confidence of Canadians in that system would evaporate. I see little difference between a home invasion and a car-jacking invasion. In the reality of the present daily life in this country, our cars are extensions of our homes. The victim of Mr. Arnaud’s car-jacking was walking to her car from a department store in a regional shopping mall. Since being victimized, her priority for securing her home and her family has prompted her to move them from Winnipeg to a small town.

While I do not equate this particular car-jacking with a home invasion, in my opinion it calls for a penitentiary sentence of at least two years. In arriving at that number of years, I have considered that this crime did not require a lot of planning and deliberation, no weapon was produced or referred to and the offender did not touch his victim. [ 16 ] While the bank robberies were more brazen than they were sophisticated, they involved some planning and the success of the first one obviously propelled the offender into the second.

I am not sure that a bank employee, particularly a new one, would be any less intimidated by seeing a note about a gun than by seeing a gun in the robber’s hand. [ 17 ] The prosecution chose not to offer proof that Mr. Arnaud was sober during his robberies. If I accept his statements to the probation officer then it is clear that, on these three occasions, he was a functioning addict. That said, and assuming that bank staff are capable of telling the difference, which is more intimidating – a stone cold sober robber with a note or one displaying symptoms of intoxication?

De Filippis J sentenced such an offender in R. v. Murdoch , 2010 ONCJ 123 . Paragraph 9 of his judgment contains this sentence: Although most cases turn on the unique circumstance of offence and offender, the theme that emerges from the case law is this: those engaged in bank robberies face significant period (sic) of incarceration, notwithstanding that they have had difficult lives and may suffer from a drug addiction and mental health problems.

I agree with de Filippis J and I agree with the assessment by prosecution counsel that four years is an appropriate sentence for each of the bank robberies. [ 18 ] Served consecutively, my preliminary assessments total ten years. Mr. Arnaud stands before the Court at thirty years of age, single and without children. He has a grade nine education and, as a result of his criminal record, owes almost $7,000.00 in fines and surcharges. As I have pointed out, he has demonstrated an ability to work and avoid conflict with the criminal law in the past. Although

she was referring to a first offender, I take cognizance of this caution by Steele JA in R. v. Maroti , 2010 MBCA 54 (at paragraph 29 ): It is in the interests of the community as a whole, where there are realistic prospects for rehabilitation, to focus on treatment and reintegration for this young man who might still become a contributing member of society given the appropriate supports. While he must be punished, a sentence should not be imposed that would crush that possibility.

Immediately following this she made reference to her judgment two months earlier in Draper , supra , in which she set out the procedure that I am following by now taking a last look at ten years for this offender. [ 19 ] It is trite to say that a crushing sentence is a sentence that offends the fundamental principle of proportionality. Although robbery carries a maximum sentence of imprisonment for life, it can be seen that robbery sentences in Canada for offences such as those committed by Mr. Arnaud rarely exceed ten years. While serving the interests of denunciation and deterrence, to sentence Mr.

Arnaud to ten years is to eliminate any incentive to work toward rehabilitation. I am therefore reducing the consecutive sentence for each of the bank robberies from four years to three years. Therefore the total sentence will be eight years and the supervision contemplated by the probation officer will have to be left to the parole authorities. [ 20 ] As of this date Mr. Arnaud has been in pre-trial custody for almost fifteen and one-half months; he is entitled to enhanced credit of fifty percent yielding a credit of twenty three and one half months of time served.

Therefore his sentence going forward will be seventy-two and one-half months. [ 21 ] Pursuant to Criminal Code, s.737(2)(b)(ii) there will be a surcharge of two hundred dollars on each count; the total of six hundred dollars is payable at the expiry of the penitentiary sentence. [ 22 ] Pursuant to Criminal Code, s. 109 there will be a mandatory prohibition order of ten years concerning certain weapons and ammunition and lifetime for a series of prohibited items. [ 23 ] Pursuant to Criminal Code, s. 487.04, robbery is a primary designated offence and there will be a mandatory order for Mr.

Arnaud to provide on demand to a qualified peace officer a sample of his DNA suitable for entry in the National DNA Data Bank. “Original signed by” R.L. POLLACK P.J.