R. v. Pearson (R.R.), (2012) 538 A.R. 236 (QB)

• Judge: Michalyshyn, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 01, 2012
• Citations: (2012), 538 A.R. 236 (QB);2012 ABQB 240

R. v. Pearson (R.R.) (2012), 538 A.R. 236 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. AP.091

Her Majesty the Queen v. Rory Raymond Pearson (080975493Q1; 2012 ABQB 240)

Indexed As: R. v. Pearson (R.R.)

Alberta Court of Queen's Bench

Judicial District of Fort McMurray

Michalyshyn, J.

April 13, 2012.

Summary:

The accused pleaded guilty to attempted robbery.

The Alberta Court of Queen's Bench sentenced the accused to a conditional sentence of two years less a day, including one year of house arrest and 240 hours of community service, followed by two years' probation.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The 31 year old accused pleaded guilty to attempted robbery - In August 2008, he approached a liquor store clerk, unfolded his pocket knife and asked for money - When the clerk refused and backed away, the accused put his knife away and fled the store - Between his release on bail and his guilty plea in October 2011, the accused committed seven minor offences, for which he was sentenced to 73 days of jail time (breaches of recognizances, failures to appear and fraudulently obtaining transportation) - Apart from those offences, the accused stayed out of trouble, had no prior record, and there was some evidence that he improved himself - The accused was genuinely remorseful - There was some history of past drug abuse and he remained a daily user of marijuana - He was a self-employed carpet layer - The pre-sentence report did not recommend a conditional sentence, given the nature of the offence and the accused's history of noncompliance with court orders - The Crown sought 18 months' imprisonment - The Alberta Court of Queen's Bench sentenced the accused to a conditional sentence of two years less a day, including one year of house arrest and 240 hours of community service, followed by two years' probation - Notwithstanding that the starting point sentence for robbery was three years' imprisonment, mitigating factors made a sentence of less than two years' imprisonment appropriate for this "low end" robbery - Although ss. 742.1 and 752 of the Criminal Code combined to preclude a conditional sentence for a "serious personal injury offence", which included, inter alia, the "use or intended use of violence", robberies did not "always" constitute a serious personal injury offence and this robbery was committed without the use of violence or attempted violence - A conditional sentence was not precluded.

Criminal Law - Topic 5855

Sentence - Robbery - [See Criminal Law - Topic 5720.4 ].

Cases Noticed:

R. v. Johnas (1982), 41 A.R. 183; 1982 ABCA 331, refd to. [para. 8].

R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 10].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 12].

R. v. Arcand - see R. v. J.L.M.A.

R. v. Fontaine (T.G.), [2008] A.R. Uned. 234; 2008 ABCA 352, refd to. [para. 15].

R. v. Muldoon (W.S.) (2006), 401 A.R. 42; 391 W.A.C. 42; 2006 ABCA 321, refd to. [para. 26].

R. v. Chalifoux (P.J.) (2005), 371 A.R. 17; 354 W.A.C. 17; 2005 ABCA 207, refd to. [para. 26].

R. v. Goin (D.J.) (1999), 232 A.R. 128; 195 W.A.C. 128; 1999 ABCA 34, refd to. [para. 26].

R. v. Otter (C.G.), [2010] A.R. Uned. 557; 2010 ABPC 218, refd to. [para. 26].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 2010 MBCA 35, refd to. [para. 31].

R. v. Lebar (S.M.) (2010), 260 O.A.C. 169; 2010 ONCA 220, refd to. [para. 32].

R. v. Hendsbee (C.B.) (2009), 284 N.S.R.(2d) 57; 901 A.P.R. 57; 2009 NSPC 50, refd to. [para. 32].

R. v. Ferguson et al., 2009 BCPC 73, refd to. [para. 32].

R. v. Thompson, 2009 ONCJ 359, refd to. [para. 32].

R. v. Ponticorvo (R.) (2009), 448 A.R. 275; 447 W.A.C. 275; 2009 ABCA 117, refd to. [para. 33].

R. v. Goulet (T.L.) (2011), 510 A.R. 315; 527 W.A.C. 315; 2011 ABCA 230, refd to. [para. 36].

R. v. Foley (J.G.) (2010), 296 N.S.R.(2d) 267; 940 A.P.R. 267; 2010 NSSC 449, refd to. [para. 40].

R. v. Griffin (E.M.) (2011), 309 N.S.R.(2d) 250; 979 A.P.R. 250; 2011 NSCA 103, refd to. [para. 42].

R. v. Conlon (S.K.) (2011), 517 A.R. 365; 2011 ABPC 259, affd. (2011), 519 A.R. 179; 539 W.A.C. 179; 2011 ABCA 379, refd to. [para. 42].

R. v. Kotelko (B.E.J.) (2011), 272 Man.R.(2d) 87; 2011 MBPC 76, refd to. [para. 42].

R. v. Brady (J.R.) (1998), 209 A.R. 321; 160 W.A.C. 321; 1998 ABCA 7, refd to. [para. 52].

Counsel:

Weronika A. Granosik, for the Crown;

Jonathan M. Lemieux, for the accused.

This matter was heard on February 1, 2012, before Michalyshyn, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 13, 2012.