Judge has issues with stickup plea deal
Kyle Joseph McKay, 39, of Lower Kingsclear, pleaded guilty to stealing cash from Hanwell store, but court pointed out facts presented Thursday still point to robbery
The Crown and defence offered a joint recommendation on sentence Thursday for a robbery suspect who admitted to a lesser charge, but the judge was hesitant to accept the more lenient suggestion.
Kyle Joseph McKay, 39, of Route 102 in Lower Kingsclear, previously elected to be tried in provincial court on charges of robbery, possession of a weapon (a screwdriver) for the purpose of committing an offence and having his face masked during a crime.
The charges arose after an early-morning stickup at Scholten’s Convenience in Hanwell last spring.
While maintaining a not-guilty plea on the robbery charge, he pleaded guilty to the lesser, included offence of indictable theft. He also admitted to the weapon and mask counts.
McKay was back in Fredericton provincial court in custody and in person Thursday for a sentencing hearing.
Crown prosecutor Christopher Lavigne said at about 6:20 a.m. on April 22, a man wearing a ski mask and carrying a pillowcase in one hand and a screwdriver in another walked into Scholten’s Convenience in Hanwell and demanded all of the money in the till.
He got $92 in cash, court heard, and he fled the scene in a blue sedan.
The store clerk, Bernice Lynch, called police and reported the robbery immediately, the prosecutor said.
“She was obviously visibly shaken,” he said. “She thought she recognized his voice.”
The victim described the suspect as a tall, skinny male, possibly wearing glasses.
The suspect left the pillowcase behind, Lavigne said, and RCMP officers immediately started searching the area for a blue sedan. There was also security footage of the incident at the store, and it confirmed the involvement of a blue car, he said.
The store released photos of the suspect on its Facebook page the same day, the prosecutor said, and tips from that social-media post led someone to report that the image looked like McKay, given his distinctive glasses. The woman providing the tip also said the shoes matched a pair she knew McKay to wear all the time, he said.
The Mounties then focused on McKay, Lavigne said, and they found the blue car, matching the one in the video, at his residence.
Police seized the vehicle April 25, court heard, and eventually located and arrested McKay on April 28.
He’s been in custody ever since.
‘Gimme the money’
Lynch delivered a victim-impact statement in court Thursday, stating that while she wasn’t physically injured, the incident has completely altered her life.
“I loved the morning shift, and I was always happy to work and serve the public,” she said, noting people were generally pleasant to deal with at that hour..
When she heard someone enter the store that morning and say “Gimme the money,” she initially thought it was a joke.
Then she saw the masked man and the screwdriver in his hand, she said, and she knew it was no laughing matter.
Lynch said she told herself to remain calm and to remember as many details as she could.
After the police arrived, she said, the gravity of what happened hit her and has never left.
She suffers from sleepless nights now and difficult days at work, she said, noting if a customer comes in the store and she can’t see their face, she experiences a moment of panic.
The victim said she experiences fear in moments when she realizes she’s alone in the store, when co-workers have stepped outside or into a back room.
Lynch said she used to be an avid reader, but she can no longer focus enough to enjoy a book these days, and the fear she experienced is even with her when she’s in her house.
“It’s an awful feeling that you’re not safe in your own home,” she said.
Lynch said she’s hoping a day comes when McKay’s name doesn’t cross her mind and send her reeling again.
‘Identification became a live issue’
Lavigne said there were some complications with the case. The Facebook post also yielded a tip pointing to a different person, he said, and a DNA sample from the scene sent for analysis came back as belonging to an unknown male.
“Identification became a live issue throughout this prosecution,” the prosecutor said.
As a result of those issues and negotiations with the defence, an agreement was reached for McKay to admit to the lesser charge rather than the robbery.
As part of that deal, Lavigne and defence lawyer T.J. Burke offered a joint recommendation on sentence: 14 months in jail, less credit for time McKay has served on remand.
The prosecutor also asked the court to impose a mandatory firearms prohibition for 10 years and a discretionary order requiring McKay to submit a DNA sample for inclusion in a criminal database.
He also asked the court to impose a two-year term of probation, during which the offender is to have no contact with the victim, stay away from the store and underago treatment for addiction issues.
Lavigne said there are mitigating factors to consider in the offender’s favour: his guilty pleas, a serious addiction issue that drove his criminal behaviour and a health issue that cost him his livelihood.
Burke said his client had served 266 days in custody since his arrest, which works out to a remand credit of 399 days. That would essentially leave Mckay with 15 days left to serve on his 14-month sentence, so he asked the court to consider imposing a term of time served Thursday.
He said McKay suffers from an addiction to hard drugs. He noted his client was making big bucks working in Fort McMurray, Alta., years ago, and with little to do in that area, many ended up indulging in vices that caused problems later on.
But the bigger issue in McKay’s life, Burke said, was the development of epilepsy. He suffers from seizures at work, which cost him his job, he said, and those seizures have continued, even while he’s been in custody at the Saint John Regional Correctional Centre since last spring.
Court heard McKay’s parents split up when he was young, but he maintains a positive, supportive relationship with his mother and her husband.
“They are prepared to keep Mr. mcKay at their home,” Burke said, noting they’ll ensure he complies with the conditions and requirements of his probation.
McKay said he was “sick and saddened” by his criminal actions that day.
“I’m still trying to understand how I could do something like that,” he said, standing in the courtroom prisoner’s dock. “I wish I never would’ve done that.”
He said his judgment was impaired and he must have been acting on impulse.
McKay said what he needs more than anything is to get on the right medications to control his epilepsy and to allow him to get back to work.
Concerns from the bench
Case law directs sentencing judges to accept joint recommendations unless they’re so far outside the norm that they would bring the administration of justice into disrepute.
Furthermore, the New Brunswick Court of Appeal has ruled that barring exceptional circumstances, offenders who commit robbery can expect to face prison terms of three to eight years, even for first-time offenders.
Judge Cameron Gunn said he understands why there was some give and take in this case, given the issues that could’ve arisen at trial with regard to identification.
But the submissions made Thursday reflect that this was a robbery, he said, not merely a theft. The court also had to consider the profound impact the crime has had on Lynch, he said.
“I’m concerned with the proposed sentence given the facts of the case,” Gunn said.
If he were to accept the joint recommendation, he said, he’d need some kind of authority on which to base that decision, given what he’d heard about what happened.
“I don’t have any case law that says I can do what you’re asking me to do,” the judge said.
He adjourned the sentencing hearing to give Burke and Lavigne an opportunity to do further research and to present precedents that would allow for the result they recommended.
Gunn set the matter over to Jan. 25 for further submissions, and he remanded McKay again until that time.
Don MacPherson can be contacted at ftonindependent@gmail.com.
Your heart goes out to the clerk,her life may never be the same again