R. v. Fleming (D.), (2013) 332 Nfld. & P.E.I.R. 195 (NLPC)

• Judge: Goulding, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: December 10, 2012
• Jurisdiction: Newfoundland and Labrador
• Citations: (2013), 332 Nfld. & P.E.I.R. 195 (NLPC);2012 NLPC 0112

R. v. Fleming (D.) (2013), 332 Nfld. & P.E.I.R. 195 (NLPC);

    1030 A.P.R. 195

MLB headnote and full text

Temp. Cite: [2013] Nfld. & P.E.I.R. TBEd. JA.015

Her Majesty the Queen v. Darren Fleming

(2012 NLPC 0112A00059; 0112A02441)

Indexed As: R. v. Fleming (D.)

Newfoundland and Labrador Provincial Court

Goulding, P.C.J.

January 8, 2013.

Summary:

The accused pled guilty to using a forged prescription and attempted robbery.

The Newfoundland and Labrador Provincial Court imposed a period of 90 days' imprisonment to be served on an intermittent basis, and two years' supervised probation, for the attempted robbery. An order for forensic DNA analysis and a firearms prohibition order were also imposed. On the offence of passing a forged prescription, the court suspended the passing of sentence and placed the accused on probation for one year. It was not in the public interest to impose a conditional discharge.

Criminal Law - Topic 4431

Procedure - Verdicts - Discharges and dismissals - Conditional discharge in lieu of conviction - [See Criminal Law - Topic 5876 ].

Criminal Law - Topic 5704

Punishments (sentence) - Suspended sentence - Circumstances when appropriate - [See Criminal Law - Topic 5876 ].

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5876 ].

Criminal Law - Topic 5849.16

Sentencing - Considerations on imposing sentence - Addicts - [See Criminal Law - Topic 5876 ].

Criminal Law - Topic 5855

Sentence - Robbery - [See Criminal Law - Topic 5876 ].

Criminal Law - Topic 5876

Sentence - Forgery - The accused passed a forged prescription for Oxycontin and Percocet to a pharmacist in Ontario - No drugs were dispensed - Two days later, the accused went to a drugstore in St. John's - He told the pharmacist to do this "quickly and quietly" and handed a note to the pharmacist which read that he had a gun, was desperate, and that he wanted Oxycontin - He told her, "I don't want to do this but I am desperate. I have a gun" - When she said that she needed a key to open the narcotics cabinet and reached for the phone he said "Don't make me do this" - He then left without the drugs - Several days later, the accused contacted the police and confessed to the robbery - The accused pled guilty to using a forged prescription and attempted robbery - 33 years old - No criminal record - Supportive family - There was no evidence that there was a weapon - The accused had suffered a shoulder injury when he prevented a family member from committing suicide by jumping from a bridge - He was prescribed Percocet for pain and started to buy Oxycontin from a co-worker in an effort to manage the pain - He started the Methadone program in July 2011 and continued with it successfully until he stopped taking his Methadone in December 2011, shortly before these offences occurred - The accused expressed remorse and accepted responsibility for the offences - He had been working and had avoided drugs - The Newfoundland and Labrador Provincial Court found that the accused committed a serious personal injury offence and a conditional sentence was not available - The court was also satisfied that his conduct inflicted severe psychological damage upon the pharmacist - The court imposed a period of 90 days' imprisonment to be served on an intermittent basis, and two years' supervised probation, for the attempted robbery - On the offence of passing a forged prescription, the court suspended the passing of sentence and placed the accused on probation for one year - It was not in the public interest to impose a conditional discharge.

Cases Noticed:

R. v. Power (A.M.) (2007), 273 Nfld. & P.E.I.R. 88; 833 A.P.R. 88; 2007 CarswellNfld 400 (N.L.T.D.), refd to. [para. 9].

R. v. Palfrey (J.T.) (2010), 295 Nfld. & P.E.I.R. 139; 911 A.P.R. 139; 2010 CarswellNfld 61 (N.L. Prov. Ct.), refd to. [para. 10].

R. v. Saunders (J.D.), [2011] A.R. Uned. 214; 2011 CarswellAlta 329 (Prov. Ct.), refd to. [para. 11].

R. v. Howse (S.V.) (2006), 384 A.R. 176; 367 W.A.C. 176 (C.A.), refd to. [para. 11].

R. v. Levagood (G.F.) (2006), 410 A.R. 211; 2006 CarswellAlta 1651 (Prov. Ct.), refd to. [para. 12].

R. v. Omilgoituk (H.) (2011), 316 Nfld. & P.E.I.R. 15; 982 A.P.R. 15; 2011 CarswellNfld 407 (N.L.C.A.), refd to. [para. 14].

R. v. Lebar (S.M.) (2010), 260 O.A.C. 169; 2010 CarswellOnt 1625 (C.A.), refd to. [para. 15].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 2010 CarswellMan 98 (C.A.), refd to. [para. 17].

R. v. Kotelko (B.E.J.) (2011), 272 Man.R.(2d) 87; 2011 CarswellMan 699 (Prov. Ct.), refd to. [para. 18].

R. v. Conlon (S.K.) (2011), 517 A.R. 365; 2011 CarswellAlta 1500 (Prov. Ct.), refd to. [para. 19].

R. v. McLeod, 2010 CarswellOnt 6209 (C.J.), refd to. [para. 20].

R. v. Reid, [2009] N.J. No. 151 (Prov. Ct.), refd to. [para. 21].

R. v. Griffin (E.M.) (2011), 309 N.S.R.(2d) 250; 979 A.P.R. 250; 2011 NSCA 103, refd to. [para. 22].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88, refd to. [para. 27].

R. v. Meadus; R. v. King; R. v. Hoffman (1986), 60 Nfld. & P.E.I.R. 64; 181 A.P.R. 64 (Nfld. C.A.), refd to. [para. 37].

R. v. Bathurst (D.L.) (1996), 187 A.R. 316; 127 W.A.C. 316 (C.A.), refd to. [para. 38].

R. v. Moore (C.A.), [2005] Yukon Cases (Terr. Ct.) 10, refd to. [para. 38].

R. v. Hutchings (R.) (2012), 316 Nfld. & P.E.I.R. 211; 982 A.P.R. 211; 2012 NLCA 2, refd to. [para. 38].

Counsel:

Jennifer Colford, for Her Majesty the Queen;

Cincy Starkes, for the offender.

This matter was heard on December 10, 2012, at St. John's, N.L., before Goulding, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision on January 8, 2013.