R. v. Atkinson (R.K.) et al., 2014 MBCA 116

• Judge: MacInnes, Cameron and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 19, 2014
• Jurisdiction: Manitoba
• Citations: 2014 MBCA 116;(2014), 310 Man.R.(2d) 310 (CA)

R. v. Atkinson (R.K.) (2014), 310 Man.R.(2d) 310 (CA);

      618 W.A.C. 310

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. JA.015

Her Majesty The Queen (respondent) v. Russell Keith Atkinson (accused/appellant)

(AR 14-30-08123; 2014 MBCA 116)

Indexed As: R. v. Atkinson (R.K.) et al.

Manitoba Court of Appeal

MacInnes, Cameron and Mainella, JJ.A.

December 19, 2014.

Summary:

Atkinson, C. Spence, Q. Spence and Chartrand were charged with assault causing bodily harm and assault with a weapon. C. Spence pleaded guilty to assault causing bodily harm and mischief. Atkinson, Q. Spence and Chartrand pleaded self-defence. The incident occurred prior to March 11, 2013, when the existing Criminal Code self-defence provisions (ss. 34 to 37) were repealed and replaced with the new self-defence provision (s. 34). The three accused argued that the new s. 34 applied retrospectively. The Crown argued that it applied prospectively.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 297 Man.R.(2d) 298, held that the new s. 34 applied retrospectively. The court found Atkinson guilty of both assault causing bodily harm and assault with a weapon. Q. Spence and Chartrand were found guilty of assault causing bodily harm and not guilty of assault with a weapon. The accused did not act in self-defence. The matter proceeded to sentencing.

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 301 Man.R.(2d) 309, sentenced Q. Spence to three years' imprisonment, less 318 days' credit for presentence custody. C. Spence was sentenced to 30 months' imprisonment for assault causing bodily harm and six months concurrent for mischief with credit on a 1:1 basis for any presentence custody. C. Spence was ordered to make restitution in favour of the Northern Hotel in the sum of $1,000 for damage to a VLT machine. Atkinson was sentenced to five years' imprisonment for assault causing bodily harm with credit for 2.5 years already served. The assault with a weapon conviction was conditionally stayed on the Kienapple principle. Chartrand was sentenced to nine months' imprisonment to be followed by two years of probation. The court made DNA orders and ordered weapons prohibitions regarding all four accused. Additionally, the court made a joint and several restitution order against all four accused in the sum of $1,200 in favour of the victim. Atkinson applied for leave to appeal from his sentence on the basis of an alleged disparity between his sentence and those of his co-accused.

The Manitoba Court of Appeal dismissed the application.

Criminal Law - Topic 5806

Sentencing - General - Co-accused - Sentence parity - The accused was convicted of assault causing bodily harm on an innocent bystander in a hotel bar - He was sentenced to five years' imprisonment - The accused applied for leave to appeal from the sentence on the basis of an alleged disparity between his sentence and those of his co-accused - The Manitoba Court of Appeal dismissed the application - Unlike the co-accused, the accused had used a weapon (a baseball bat) during the assault - In a statement to police, the accused showed callous disregard for the senseless beating of the victim - Further, at the time of the assault, the accused had just completed a five year sentence for manslaughter in a beating death - The accused failed to establish an arguable case that his sentence was "demonstrably unfit or clearly unreasonable or that it was arrived at as a result of an error in principle".

Criminal Law - Topic 5883

Sentence - Assault with a weapon or assault causing bodily harm - [See Criminal Law - Topic 5806 ].

Criminal Law - Topic 6211

Sentencing - Appeals - Variation of sentence - Application for leave to appeal - Grounds - [See Criminal Law - Topic 5806 ].

Cases Noticed:

R. v. Gill (J.S.), [2010] Man.R.(2d) Uned. 67; 2010 MBCA 92, refd to. [para. 2].

Counsel:

A.G. Cellitti, for the appellant;

R.N. Malaviya, for the respondent.

This application was heard on December 19, 2014, by MacInnes, Cameron and Mainella, JJ.A., of the Manitoba Court of Appeal. On the same date, Mainella, J.A., delivered the following decision orally for the court.