English translation of reasons for judgment in Sa Majesté la Reine c. Paiement, 2011 BCSC 415

Supreme Court of British Columbia

Citation:Sa Majesté la Reine c. Paiement,
2011 BCSC 415

Date: 20110317
Docket: 25324
Registry: Vancouver

Oral Reasons for Sentence

Counsel for the Crown: P. Benning

The Accused, appearing in person: D. Paiement

Amicus curiae: P.H. Edelmann

Place and Date of Trial/Hearing: Vancouver, BC
March 17, 2011

Place and Date of Judgment: Vancouver, BC
March 17, 2011

Judgment on Sentence

[1] On January 17, 2011, the accused was convicted for robbery at a Pharmaprix pharmacy, contrary to s. 344(1)(b) of the Criminal Code. I now must determine a just punishment for his crime.

1. BACKGROUND FACTS

[2] On September 3, 2009, in Vancouver, British Columbia, Mr. Paiement entered Nellie Jakac's pharmacy on Cambie Street between 12:45 and 1:00 PM. The events were captured on video. He asked for pain medications and Ms. Jakac went behind the counter to look for them. He then pointed a knife her and demanded the contents of the cash register. Ms. Jakac was working alone and there was no one else in the store during the robbery. On video, Mr. Paiement can be seen attempting to open the door to the dispensary. Ms. Jakac was only about five or six feet from the intruder. The blade of the knife was around four or five inches long. The knife was a hunting knife with one side that was wider. Mr. Paiement pulled the knife out with his right hand while holding a bag with his left hand. Ms. Jakac testified that when she asked Mr. Paiement if he wanted a knife, he looked at her and responded "non, je veux ça" ("no, I want that")^TR1 while pointing his knife at the cash drawer. She asked him if he wanted the cash register. They stared at each other. She moved her hand to the cash register and pressed the alarm button. She testified that he saw her press the button but this was not visible in the video. They continued to stare at each other until he fled the store. Ms. Jakac did not give him any money. She felt scared and paralyzed.

2. POSITIONS OF THE PARTIES

[3] The Crown's position is that primary principle of sentencing here is the protection of the public. Given Mr. Paiement's lengthy criminal history, the fact that this is his fifth conviction for robbery and his lack of hesitation to employ violence in the course of some of his crimes, the amicus curiae agrees that the Crown's proposed sentence of six to seven years is appropriate. The Crown seeks a sentence of six to seven years' imprisonment.

[4] The accused admits to his criminal history and accepts his sentence. However, he submits that some of his convictions were illegal. He has applied for a writ of habeas corpus which will ultimately be heard by a different judge.

3. LEGISLATIVE FRAMEWORK FOR SENTENCING

[5] The following three articles of the Criminal Code are the most pertinent for sentencing in this case. Parliament has laid out the purposes and principles for sentencing to be considered to determine a just punishment.

4. THE CIRCUMSTANCES OF THE ACCUSED

[6] Mr. Paiement will turn fifty-five years old next week. He was born in Quebec. He has a lengthy criminal history. This will be his fifth conviction for robbery. When he was a child, he was mistreated and suffered neglect in his education. He explains that he was a victim to sexual and physical abuse. He was educated in English. While in prison, he worked as a painter. Outside of prison, even though he has convictions for assault, he has never injured any civilians and has only made threats.

5. ANALYSIS

[7] The maximum sentence for robbery under s. 344(1)(b) is imprisonment for life. The legislative purpose of this maximal sentence is to reflect the gravity of robbery.

[8] S. 344 sanctions robbery, a crime which courts must strongly rebuke for the purpose of deterrence.

[9] Sentences must be proportionate to the seriousness of the crime and the degree of responsibility of the accused. The court must consider all mitigating and aggravating circumstances pertinent to the crime and the circumstances of the accused as described by the Code. The court must also consider the situation of the accused and the victim (if they have made a victim impact statement).

[10] In regards to mitigating circumstances, even though the crime was premeditated, it was not very elaborate nor well-prepared. We do not know why Mr. Paiement left. Perhaps it was because Ms. Jakac pressed the alarm button, but in any case, he left. He chose not to injure Ms. Jakac.

[11] On the other hand, the Court finds the following aggravating factors apply:

• the accused has a lengthy criminal history for forty-four convictions. He has shown a chronic disrespect for others' well-being and property, and for court orders;
• as set out above, this is Mr. Paiement's fifth conviction for robbery;
• the crime was committed within a couple of weeks of his previous release. He lived in a transition home. He has lived 90-95% of his adult life in prison. He was first incarcerated when he was twenty years old.
• he targetting a victim who was vulnerable and defenseless;
• the accused shows an elevated risk of recidivism and has not demonstrated the will to change, a necessity for rehabilitation.

[12] It is important to denounce unlawful conduct, to deter the offender and other persons from committing offences and to separate offenders from society, when necessary. Parity with other sentences is also important. In this case, it is important to highlight that an employee was threatened during the robbery, which is punished in British Columbia, by imprisonment between two and nine years' imprisonment.

[13] I have considered the following decisions to determine the sentence for robbery in the circumstances:

• R. v. A.D.P., [2005] BCJ No 2737 (BCCA)
• A thirty-seven year old accused was already sentenced to sixteen months and four years' imprisonment for robbery. The Court of Appeal substituted a sentence of six years in place of the trial judge's sentence. The accused stole over $50,000 by threatening employees at three locations.
• R. v. MacDonald - 2006 BCCA 535
• The Court reduced the sentence from eight years to four years for a forty-five year old accused who had a long criminal history and had previously committed two robberies with a knife. The trial judge did not consider a period of twelve years during which MacDonald had no criminal history and worked regularly. MacDonald is one of the most important decisions for British Columbia courts for determining a sentence for robbery. The decision examined various other similar cases. Written by Mr. Justice Smith, the court of appeal established a range between two to nine years for repeat offenders, citing R. v. Brogan, [1999] BCJ No 1011 (CA).
• R. v. Brogan: this decision involved a robbery where the accused pressed a pellet gun against a hostage's head in a bank^TR2. The court said:
  1. [9] Since his sentencing 2 years ago, Mr. Brogan has come to terms with a horrible childhood secret. When he was between the ages of 13 and 17 he was sexually abused by a man who befriended and employed him in a part-time job. Mr. Brogan was particularly vulnerable at this time because his mother had become ill when he was 12 years old and had died just after his fifteenth birthday. Mr. Brogan is now receiving counselling in prison for the damage that was done to him.
  2. [10] We have been given a number of cases where robbery with violence has been committed by young men such as Mr. Brogan. An analysis of the range produced by these cases is that the sentencing range is somewhere between 2 and 9 years. The age of the offender, his previous criminal experience, the level of violence, the number of offences, the level of premeditation, whether the perpetrator was disguised or not, the type of weapon used and how it was used, the possibility of rehabilitation, the requirement of deterrence in a particular community, are some of the factors which serve to distinguish one fact pattern from another. None of the cases drawn to our attention fits Mr. Brogan's situation exactly, none could.

[14] I pause here to note that Mr. Paiement is the same situation.

[15] The court continued:

1. [11] Section 718.2(b) provides that:
   ...sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
   This section imposes the principle of consistency. Since no two offences are ever entirely the same, the section mandates that the court determine a general range for similar offences for similarly situated offenders. Offences and offenders can be generally categorized but a multitude of factors, as I have mentioned, will distinguish the details. Thus, in this case the range can at best be said to be between 2 and 9 years.
2. [12] In the case at bar the trial judge determined that the single most aggravating feature of these offences was the callous way in which Mr. Brogan terrorized the cashier and his hostage in the second robbery in order to obtain money. Masked and holding a gun to the head of the hostage, Mr. Brogan counted down the seconds to what the young woman believed was the end of her life. The trial judge determined that deterrence and denunciation were the most important factors in this sentence and I cannot say that he erred in so finding.
3. [13] The only question for this Court is whether the undisclosed sexual abuse suffered by Mr. Brogan as a teenager would have influenced the trial judge to reduce the sentence to one of 6 rather than 8 years, on the theory that the underlying causes of Mr. Brogan's criminality are now being addressed. On the evidence which we have before us, I cannot say that he would have been so influenced.
4. [14] Mr. Brogan is just now coming to terms with this abuse. The circumstances of this abuse may well be related to the commission of the offences we are dealing with. Since the abuse has only recently been disclosed we do not have sufficient information before us to know whether it did or did not. In my view, if it is subsequently determined that the abuse is an underlying cause of Mr. Brogan's criminality, it is something which can and ought to be taken into account when Mr. Brogan applies for parole. If, in the future, Mr. Brogan is able to successfully address the issue, the evidence of his rehabilitation may be placed before the parole board, which will no doubt give it serious consideration in any application for conditional release.

[16] In the end, the court dismissed the appeal. Brogan is oft-cited and is a key decision in British Columbia.

[17] The following decision is also pertinent to the determination of a fit sentence:

• R. v. Bezdan - 2001 BCCA 215
• The accused entered a bank and handed a note to an employee demanding the money in the register. The accused had been convicted several times in the previous fifteen years, including seven convictions for robbery, at the time of the bank robbery. The Court of Appeal upheld a sentence of five years' imprisonment because the trial judge made no error, properly considered the possibility of rehabilitation and correctly recognized the importance of the protection of the public in a case where the accused had a habit of employing robbery to satisfy his cocaine addiction. The sentence was upheld even though the Crown had only argued for two years' imprisonment.

[18] In summary, the sentencing range for an robbery committed while threatening others but without causing injuries in British Columbia is between two and nine years for a repeat offender.

[19] The most important sentencing principles in this case are denunciation and deterrence. Given that past attempts to rehabilitate Mr. Paiement have failed, as evidenced by the lengthy criminal history of the accused, the court finds that in the circumstances, there is a highly elevated risk of recidivism. There are grounds to issue a sentence of deterrence, not only in the general sense as already discussed, but specific deterrence as called for by the circumstances. The actions of the accused and his length history place him within the upper range of sentencing.

[20] The Crown submits that a fit sentence in the circumstances would be six to seven years' imprisonment. The court has considered the key precedents, the circumstances as set out out above and the step-up principle for sentences, given that the last sentence did not have the effect envisioned by the Court in 2004.

[21] The repetition of the same offence, particularly in absence of mitigating circumstances, justifies a more severe sentence than previous sentences. However, the application of this principle has its limits. S. 718.2 specifies (as previously noted by the court) that in all circumstances, the sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender.

[22] In the circumstances, there are grounds to consider inflicting a sentence less severe than that of 2004 because the violence employed in this case was less severe. However, the accused now represents an elevated risk to the community so the court accepts the Crown's submission that a sentence of six to seven years is appropriate.

[23] Mr. Paiement, will you please stand. Therefore, in summary, in consideration of the principles of denunciation, general deterrence, specific deterrence, the criminal history of the accused, the elevated risk of recidivism, the circumstances of the offence, the gravity of the offence and your responsibility, the court sentences you to six years' imprisonment consecutive to your previous sentence.

[24] The court authorizes the taking of bodily substances for the purposes of forensic DNA analysis pursuant to s. 487.051(1)(a) of the Criminal Code. You are prohibited from possessing prohibited firearms, restricted firearms, prohibited weapons, prohibited devices and prohibited ammunition for life pursuant to s. 109 of the Criminal Code. You are prohibited from possessing any firearms apart from prohibited and restricted firearms - cross-bows, restricted weapon, ammunition and explosive substances - for life, pursuant to s. 109 of the Criminal Code. Finally, the court waives the victim surcharge pursuant to s. 737(5) oft he Criminal Code.

[25] Mr. Paiement, you have stated that you were subjected to sexual and physical abuse and that you have had a difficult life. The court has considered these circumstances. Mr. Paiement, I hope that you will reflect on your actions and I hope that you will be able to start a new life.

1. TR1. It is likely that the accused and the victim actually spoke English, but the reasons for judgment provide the quote in French, so I have provided both languages here.
2. TR2. R v. Brogan actually involved a crime in a gas station. There was probably mixup between this case and R v. Bezdan, discussed later in the reasons.