R. v. Hailemolokot (B.W.), 2012 MBQB 126

Judge:Simonsen, J.
Court:Court of Queen's Bench of Manitoba
Case Date:April 25, 2012
Jurisdiction:Manitoba
Citations:2012 MBQB 126;(2012), 281 Man.R.(2d) 128 (QB)
 
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R. v. Hailemolokot (B.W.) (2012), 281 Man.R.(2d) 128 (QB)

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Temp. Cite: [2012] Man.R.(2d) TBEd. JN.035

Her Majesty The Queen v. Biniam Worede Hailemolokot and Natnele Mesgna (accused)

(CR 11-01-31083; 2012 MBQB 126)

Indexed As: R. v. Hailemolokot (B.W.) et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Simonsen, J.

April 25, 2012.

Summary:

Hailemolokot and Mesgna were charged with two counts of robbery with a firearm and several related offences, arising from an incident in August 2008. The Crown contended that both accused's involvement in the robbery was either as co-principal or aider under ss. 21(1)(a) and (b) of the Criminal Code. The central issue was whether the accused committed or were parties to the robbery. Although the complainants (Kolbauer and Clare) could generally describe the perpetrators, they were unable to identify either accused.

The Manitoba Court of Queen's Bench found that Mesgna was both a co-principal and an aider to the armed robbery. Therefore, Mesgna was found guilty of robbery with a firearm of both Kolbauer and Clare. He was also found guilty of using a firearm in a careless manner or without reasonable precaution for the safety of others, pointing a firearm at Clare, and possession of a weapon for the purpose of committing an offence. The court also found that Hailemolokot was guilty as a joint principal and an aider to the armed robbery. Hailemolokot was found guilty of robbery with a firearm of both Kolbauer and Clare, using a firearm in a careless manner or without reasonable precaution for the safety of others, possession of a firearm for the purpose of committing an offence, and carrying a concealed weapon without authorization. The accused were both acquitted of other counts.

Criminal Law - Topic 1721

Offences against property - Robbery - Intention or mens rea - [See first Criminal Law - Topic 2747 ].

Criminal Law - Topic 1726

Offences against property - Robbery - What constitutes - [See both Criminal Law - Topic 2747 ].

Criminal Law - Topic 2747

Attempts, conspiracies, accessories and parties - Parties - What constitutes a party - Mesgna was charged with, inter alia, two counts of robbery with a firearm - The Crown's theory was that Mesgna was part of a group of males who walked toward the complainants, Kolbauer and Clare - Hailemolokot was said to have stepped forward from the group, pointed a silver air pistol at the complainants and demanded that they drop everything - Clare dropped a shopping bag - Kolbauer knocked the gun from Hailemolokot's hand and slapped his face - Mesgna was said to have then stepped forward, pointed a black air pistol at the complainants and told them to back off - Although the complainants could generally describe the perpetrators, they were unable to identify either Mesgna or Hailemolokot - The Crown contended that Mesgna's involvement in the robbery was either as co-principal or aider under ss. 21(1)(a) and (b) of the Criminal Code - The Manitoba Court of Queen's Bench held that Clare's evidence, coupled with Mesgna's admissions in his police statement, satisfied it beyond a reasonable doubt that Mesgna stepped forward, pointed a gun at Clare, and told the complainants to back off or back up - Further, the evidence and statement proved both knowledge of the robbery and an intention to participate and assist - Mesgna's actions were an attempt to assist by intimidating the complainants and getting them to back away - The court therefore found that Mesgna was both a co-principal and an aider to the armed robbery - The court would have come to the same conclusion even if Mesgna had stepped forward with the gun in hand and out in the open, but not pointed it at Clare or spoken to the complainants - Those actions would have been taken to assist in the robbery by intimidating the complainants - See paragraphs 31 to 41.

Criminal Law - Topic 2747

Attempts, conspiracies, accessories and parties - Parties - What constitutes a party - Hailemolokot was charged with, inter alia, two counts of robbery with a firearm - The Crown's theory was that Hailemolokot was part of a group of males who walked toward the complainants, Kolbauer and Clare - Hailemolokot was said to have stepped forward from the group, pointed a silver air pistol at the complainants and demanded that they drop everything - Further, when the complainants hailed a passing van for assistance, Hailemolokot allegedly pointed the silver pistol at the driver - Although the complainants could generally describe the perpetrators, they were unable to identify Hailemolokot - The Crown contended that Hailemolokot's involvement in the robbery was either as co-principal or aider under ss. 21(1)(a) and (b) of the Criminal Code - The Manitoba Court of Queen's Bench found that Hailemolokot's evidence raised a reasonable doubt as to whether he had a gun at the scene and was the person who pointed the silver gun at Kolbauer - However, in his statement to police, Hailemolokot admitted that the plan to rob was made at a wedding and that he acted as the driver of the car - He knew the guns were in the trunk and he told the police that there was discussion in the car about committing a robbery - He admitted to running to the car after the incident, and driving away - The guns were in the car, and he was planning to stash them somewhere - All of that established beyond a reasonable doubt that he was a joint principal and an aider to the armed robbery - Hailemolokot was therefore found guilty of robbery with a firearm of Kolbauer and Clare - See paragraphs 42 to 49.

Criminal Law - Topic 2748

Attempts, conspiracies, accessories and parties - Parties to offences - Principal offender - Who constitutes - [See both Criminal Law - Topic 2747 ].

Cases Noticed:

R. v. Largie (G.) et al. (2010), 266 O.A.C. 103; 101 O.R.(3d) 561; 2010 ONCA 548, refd to. [para. 25].

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267, refd to. [para. 27].

R. v. L.I.H. (2003), 177 Man.R.(2d) 178; 304 W.A.C. 178; 2003 MBCA 97, refd to. [para. 28].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86; 2010 SCC 13, refd to. [para. 29].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 30].

R. v. Weddell, [2005] O.J. No. 4960 (Sup. Ct.), refd to. [para. 40].

R. v. Weddell, [2006] O.J. No. 4704 (C.A.), refd to. [para. 40].

R. v. Dhillon (S.) (2002), 161 O.A.C. 231; 166 C.C.C.(3d) 262 (C.A.), refd to. [para. 43].

R. v. Candir (E.) (2009), 257 O.A.C. 119; 250 C.C.C.(3d) 139; 2009 ONCA 915, refd to. [para. 43].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 51].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 21(1), sect. 21(2) [para. 26].

Counsel:

Michael G. Himmelman, for the Crown;

T. Adam Masiowski, for the accused, Biniam Worede Hailemolokot;

Leonard J. Tailleur, for the accused, Natnele Mesgna.

This matter was heard before Simonsen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on April 25, 2012.

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