Impersonating a registered professional or persons in authority: R. v. Minaker, 1992 ABCA 255 (CanLII). Click here.
R. v. Minaker, 1992 ABCA 255 (CanLII)
In the Court of Appeal of Alberta
Citation: R. v. Minaker, 1992 ABCA 255
Date: 19920930
Docket: 9203-0230-A6
Registry: Edmonton
Between:
Her Majesty the Queen
Appellant
- and -
Robert James Minaker
Respondent
The Court:
The Honourable Mr. Justice Shannon
The Honourable Madam Justice Veit
The Honourable Mr. Justice Irving
Memorandum of Judgment
COUNSEL:
B.D. Rosborough, for the Appellant
B.H. Aloneissi, for the Respondent
MEMORANDUM OF JUDGMENT
THE COURT:
[1] The appellant Crown appeals from the sentences (resulting in a global sentence of 5 years) imposed upon the respondent on March 13, 1992 as follows:
Counts 1 & 2: Possession of Stolen Automobiles - one year imprisonment on each count;
Count 3: Unlawful confinement - one year imprisonment;
Count 4: Sexual Assault - four years imprisonment consecutive to the sentences for Counts 1, 2 and 3.
[2] In the early morning hours of November 30, 1991, the respondent, posing as a police officer, purported to arrest the complainant who was a middle aged woman and abducted her for the purpose of sexually assaulting her.
[3] The circumstances of the offences are described in the Agreed Statement of Facts placed before Saddy P.C.J. as follows:
[4] Robert James MINAKER stands charged, that he:
Count #1: On or about the 30th day of November, A.D. 1991, at or near Spruce Grove, in the Province of Alberta, did falsely represent himself to be a peace officer, to wit: a police constable for the City of Edmonton, Alberta, to (Victim), contrary to the provisions of the Criminal Code.
Count #2: On or about the 30th day of November, A.D. 1991, at or near Spruce Grove, in the Province of Alberta, did kidnap (Victim), with intent to cause her to be confined against her will, contrary to the provisions of the Criminal Code.
Count #3: On or about the 30th day of November, A.D. 1991, at or near Spruce Grove, in the Province of Alberta, did commit a sexual assault upon (Victim), contrary to the provisions of the Criminal Code.
Count #4: On or about the 30th day of November, A.D. 1991, at or near Spruce Grove, in the Province of Alberta, did steal the sum of fifty dollars ($50.00) from (Victim) and at the time thereof did use violence to (Victim), contrary to the provisions of the Criminal Code.
Count #5: On or about the 30th day of November, A.D. 1991, at or near Spruce Grove, in the Province of Alberta, did in person, knowingly utter a threat to cause bodily harm to (Victim), contrary to the provisions of the Criminal Code.
FACTS:
IT IS AGREED THAT, at approximately 0230 hours on November 30, 1991, the victim drove a friend to her friend's residence in Spruce Grove. When the victim arrived out front of her friend's residence a vehicle pulled up from behind and a male, later identified as the accused, approached the victim. The accused identified himself as an Edmonton City Police Officer and produced a false business card. He asked the victim for her driver's license, which was produced and then returned. The victim was accused of speeding and the accused suggested that the victim was impaired. The accused indicated that he had followed the victim from Edmonton. The victim was asked to step out of her vehicle and she did so, was immediately placed in handcuffs and put in what she thought was a police car. The victim was placed in the front seat at which time the accused drove out of the residential area. The friend of the victim witnessed the described events.
The accused drove the victim onto Highway #16, then east on Highway #16 towards Edmonton. The accused continued the charade of being a police officer by talking into a cellular telephone and suggesting to the victim that he was calling ahead to prepare the breathalyzer. The accused then turned off of Highway #16 onto a Range Road, also referred to as Pinchback Road, and headed south towards 79th Avenue, then east to a small oil lease road, turning off into the lease area and parking the vehicle.
The accused then indicated to the victim that he would drop the charges if she would be nice to him. The accused then began to make suggestive remarks to the victim, tore her dress, ripped her panties and panty hose off using a key, and forced intercourse on the victim. The accused also fondled the victim's breasts with his hands, covered her head with a hood from a jacket and continued to have her handcuffed as he sexually assaulted her and forced intercourse.
The victim at no time consented to the forced sexual acts and, in fact, indicated several times that she did not want to have relations with the accused, nor be confined in the manner that she was. After having forced intercourse with the victim the accused told her that she could leave the vehicle but if she were to go to the police or if he heard anything about what happened he would harm her and her children because he knew where the victim and her family lived.
The accused kept the victim's black purse and contents which included several pieces of Identification, keys to her residence, credit cards, cheque books, and at least $50.00 cash. The accused then unhandcuffed the victim and told her to walk away from the vehicle and not look back. The victim was able to locate a rural residence where she notified the police.
A subsequent investigation led to the arrest of the accused in his apartment residence in the City of Edmonton, Province of Alberta. The accused was advised of his rights and a Search Warrant was executed. In his pocket were keys belonging to the victim. In the parking lot of the apartment a 1991 Pontiac was seized. This vehicle was bearing license plates of the accused and matched the description of the vehicle given by the victim. The vehicle was determined to be stolen. Recovered in the trunk of the vehicle was all of the clothing described by the victim and the handcuffs. The accused was interviewed at length and subsequently provided a statement under warning in which he admitted to the offences involving the victim.
[5] In imposing sentence, the Provincial Court Judge referred to other offences for which the respondent had pled guilty before the same judge on an earlier occasion.
[6] The court said as follows:
The accused was earlier sentenced by this Court to incarceration for 33 months on a number of other charges, none of them which involved violence. But one of which was a minor sexual assault in which the accused, posing as a police offer, kissed a young woman after driving her home, I believe to permit her to produce some identification. At that time, counsel for the accused requested an adjournment to permit the present charges to be brought forward so that a global sentence could be imposed on the outstanding charges.
Unfortunately because these charges were to be waived from another jurisdiction, they were again unavailable at the adjourned date. Accordingly, sentence was imposed on those and prior charges before me at the time.
I am, nevertheless, viewing the sentence in this matter in a global context of all the previous charges. I am keeping in mind that a global sentence should not be crushing."
[7] One of the these earlier offences involved unlawful confinement and the circumstances about it had been outlined to Saddy P.C.J. on the earlier sentencing hearing on January 21, 1992, as follows:
"With regards to the next matter, Sir, that's what I submit to be--they are all serious charges. They are dealing with theft from employers, but I would submit, Sir, this is a very serious charge, the unlawful confinement. Basically what happened here, Sir, is on that particular date at 2:45 in the morning, the complainant, a lady in town here stops at a parking lot at Arby's Restaurant at the intersection of Yellowhead Trail and St. Albert Trail. She is then approached by the accused who is operating a white Ford half-ton truck. The accused is dressed in what appears to be a uniform to her, and he requested that she step outside her vehicle. When she did, he advised her that he was arresting her for impaired driving, at which point searches her and then handcuffs her behind, places handcuffs behind her back. The complainant is then placed into the front seat of the accused's truck. The accused speaks with her for a short while then indicated that he was going to drive her to her residence in St. Albert, he does drive her home while she is still handcuffed in the vehicle. Just before arriving at the residence, the accused stops, removes the handcuffs from her and then escorts her into her house where he asks her to provide documentation for a vehicle and identification. Prior to leaving the residence, the accused kisses the complainant and gives her a hug.
Later on, the complainant realizes that there is $20 missing from her folder that held her identification, and that was in the folder when she handed it to the accused. Subsequently the complainant was shown a photo lineup and positively Identified the accused as being the one that was involved in this particular matter, Sir."
[8] The sentence imposed for earlier offences were concurrent terms of imprisonment for 90 days for each of the unlawful confinement and theft counts. By making the sentences imposed for the second group of charges (which are here appealed) concurrent with the sentence imposed for the earlier group of charges, the sentencing judge effectively added an additional term of imprisonment of approximately 29 months.
[9] There is a pattern between the September 28, 1991 unlawful confinement offence, and the November 30, 1991 offences. The earlier offence involved the respondent posing as a police officer, handcuffing the victim after "arresting her", taking her from the scene for the ostensible purpose of checking her identification, then stealing money from her and including some minor conduct with sexual overtones - kissing and hugging the victim.
[10] This conduct evolved dramatically in the offences under appeal, where the respondent selected his victim in Edmonton, followed her to Spruce Grove (perhaps 20 miles) where posing as a police officer he accused her of speeding and impaired driving. He required her to get out of her vehicle, immediately handcuffed her, "arrested" her and abducted her for the purpose of raping her.
[11] The respondent was 23 years of age at the time of these offences, and had a lengthy criminal record both as a young offender and as an adult. As a young offender the respondent was variously convicted of offences involving uttering forged documents, escaping lawful custody, possession of stolen property, public mischief and personation with intent.
[12] Since becoming an adult the respondent has been convicted of many offences, including escaping lawful custody, breaking and entering with intent, possession of property obtained by crime, fraud, and obstructing a police officer. These offences have in many cases resulted in lengthy prison sentences, the longest being a 28 month sentence consecutive to any other sentences then being served.
[13] What is a fit sentence for this offender and these offences? The mitigating factors are few. The respondent did plead guilty, thus saving the victim the agony of recounting her attack and humiliation. The sentencing judge considered that the plea of guilty and other factors indicated remorse. However, the pre-sentence report and a psychiatric report provided to the sentencing judge do not leave the reader with an impression of remorse. Indeed the psychiatric report concludes by saying:
"Summary and Recommendations
Mr. Robert Minaker is a twenty-three year old divorced man with a past history of many property offences, some episodes of impersonating a police officer, and now further charges of sexual assault. He is of normal intelligence, and he is not in any way mentally ill. He responded to the psychological assessment in a way designed to make others feel sorry for him. Although his defence counsel has made much of his relationship with his mother, and his need for mothering, linking this with his impersonating others in authority, many men marry women similar to their mothers, and spend their lives being mothered by these women, without ever impersonating others in authority, or committing crimes. I think this issue is irrelevant, and need not be the focus of any treatment.
I noticed that his criminal pattern began with acquisitive property offences, with him taking what he wanted without others' permission. He appears to have taken these same attitudes in the area of sex, in his latest offences. I would regard this as a fairly serious progression, indicative of a probable continuing pattern. Such a pattern is likely to be resistant to change by therapeutic means, and I would not recommend any treatment for him, except perhaps for his stuttering."
[14] The aggravating factors are many; the careful planning of the offence; the prior conviction for the similar, though much less aggravated offence; the abduction of the victim from the street for the purpose of a rape; handcuffing her, impersonating a police officer to allay the victim's fears while being abducted, and the threats made against the victim and her children should she report the attack to the police (the respondent had retained the victim's purse including her identification).
[15] In R. v. Jivani May, 1983, this court considered the appropriate sentence where a woman had been abducted from the street for the purpose of a sexual assault, Laycraft J.A. stated:
There are grossly aggravating factors in this case. First the abduction of a person off the street places this in the most violent category of rape or of crimes generally."
[16] In crafting his sentence, Saddy P.J.C. cautioned himself against imposing a global sentence which might be crushing. We think he erred in failing to give appropriate consideration to other elements of sentencing, such as denunciation of the crime and, importantly in our view, protection of the public from this offender.
[17] Accordingly, we grant the Crown leave to appeal, and allow the appeal against sentence. We increase the four year sentence for the sexual assault to six years, to be consecutive to the one year sentences for Counts 1,2 and 3. We direct that the resultant global seven year sentence for these offences be consecutive to any other sentences being served.
JUDGMENT DATED at Edmonton, Alberta,
this 30th day of September,
A.D. 1992
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