This offence took place at a store's cash register. Why was Mitchell not charged with robbery?

Case Analysis: R. v. Mitchell Melissa Mitchell was charged with theft from her employer on two separate occa- sions. She pleaded guity to the first incident and not guilty to the second. In the sec- ond incident, evidence indicated that the defendant, who was working in the store, approached the sales counter with her father. She reached over the counter, took a roll of security tape used to indicate that items have been paid for, and marked an oven burner element with it. She then put the element at the end of the counter, where things that have been scanned by the bar-code reader are usually placed. Mitchell then handed the cashier a package of rivets and said, "here, ring these in, and gimme my staff discount." These were paid for, but the oven burner element was not. Mitchell's father then left the store with the rivets and the element. At trial, Melissa indicated that she was merely helping the cashier by putting the security tape on the element. Further, her lawyer argued that it was not his client's fault that the cashier failed to scan the bar code of the oven burner element and so she could not be found guilty of theft. The Judge relied on a precedent in R. v. Pombiero, [1998] A.J. No. 982 in which Justice Mustard wrote "By the accused passing the good found in the car across her till unscanned, which I find she did, whether spontaneously or planned by her, was a conscious act making her a party to the theft of those items." The ruling in this case noted: "By handling the item as she [ Mitchell] did, i.c., taping it as if it had been scanned into the cash register, and then placing it at the end of the counter where scanned items are put, the defen- dant was falsely marking the item as having already having been scanned into the cash register. This was fraudulent. This allowed the defendant's father to leave the store without having paid for the item. The defendant is guilty of theft."