R. v. Keepness (D.L.) et al., (2010) 359 Sask.R. 34 (CA)

• Jurisdiction: Saskatchewan
• Judge: Sherstobitoff, Jackson and Ottenbreit, JJ.A.
• Neutral Citation: 2010 SKCA 69
• Court: Court of Appeal (Saskatchewan)
• Date: 08 April 2010
• Citation: (2010), 359 Sask.R. 34 (CA),2010 SKCA 69,[2010] 10 WWR 13,255 CCC (3d) 457,359 Sask R 34,359 SaskR 34,(2010), 359 SaskR 34 (CA),359 Sask.R. 34

R. v. Keepness (D.L.) (2010), 359 Sask.R. 34 (CA);

    494 W.A.C. 34

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. JN.012

Her Majesty the Queen (appellant) v. Dallas Lee Keepness, Michael Douglas Keepness, and James Joseph Edward Pewean (respondents)

(No. 1711; 2010 SKCA 69)

Indexed As: R. v. Keepness (D.L.) et al.

Saskatchewan Court of Appeal

Sherstobitoff, Jackson and Ottenbreit, JJ.A.

May 27, 2010.

Summary:

Four accused (Dallas Keepness, Michael Keepness, Pewean and McNabb) committed a home invasion to search for drugs and money. Several occupants of the home were attacked. One victim died. The accused McNabb pled guilty to second degree murder and two counts of aggravated assault. The other three accused pled guilty to manslaughter and two counts of aggravated assault.

The Saskatchewan Court of Queen's Bench, in a decision reported at 338 Sask.R. 183, sentenced McNabb to life imprisonment with no chance for parole for 10 years for the murder, seven years' imprisonment (concurrent) for the aggravated assaults less four years' credit for pre-sentence custody. The other accused were sentenced to 11.5 years' imprisonment for manslaughter, seven years' imprisonment (concurrent) for the aggravated assaults less four years' credit for pre-sentence custody. The court also made a lifetime firearms prohibition order respecting all the accused. The Crown sought leave to appeal the sentences imposed on Dallas Keepness, Michael Keepness and Pewean.

The Saskatchewan Court of Appeal granted leave to appeal the sentences. The court increased the three accused's sentences for manslaughter to 15 years less four years' credit for pre-sentence custody. The concurrent sentences of seven years for each of the aggravated assaults remained undisturbed.

Criminal Law - Topic 5846.5

Sentencing - Considerations - Sentence precedents (incl. sentence range) - The Saskatchewan Court of Appeal stated that a sentence range "... is a tool to measure fitness of sentence under s. 687(1) of the Criminal Code. When an appellate court establishes or recognizes a range, guidance is provided to the sentencing courts, but in concrete terms the role of the sentencing judge remains the same. The task of the sentencing judge is always to position a case in its appropriate place, having regard for the principles of sentencing as applied to all of the circumstances of the offence and the offender. Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decisions that the 'range', as it were, must be expanded. The fundamental point is that a 'range' is not a straitjacket to the exercise of discretion of a sentencing judge. Both trial judges and appellate court judges alike may be of the view that a case raises new issues not previously addressed or that the range must be expanded to meet changing circumstances or a new parliamentary imperative." - See paragraphs 24 and 25.

Criminal Law - Topic 5846.5

Sentencing - Considerations - Sentence precedents (incl. sentence range) - The Saskatchewan Court of Appeal stated that "Manslaughter sentencing can raise difficult issues for the sentencing judge because of the protean nature of the offence, covering as it does a wide variety of circumstances. Given the variable nature of the offence, appellate courts in Canada have been leery about 'establishing' a range for manslaughter ... In Saskatchewan, a review of the case law bears out the statement that there is a usual range for manslaughter, involving brutality and alcohol or drugs, from four to 12 years ... No matter how one tries to delimit the type of case for which the range for manslaughter is being set, the description will remain nebulous and the circumstances variable. Correct application of the principles of sentencing should mean there are fewer sentences falling outside the range for manslaughter than within it, but in the exercise of their discretion, judges may depart, without introducing disparity, where the circumstances of the case are beyond those customarily found at the lower or upper ends of the range." - See paragraphs 26 to 29.

Criminal Law - Topic 5849.23

Sentencing - Considerations - Home invasion - [See first, second and third Criminal Law - Topic 5882 ].

Criminal Law - Topic 5882

Sentence - Manslaughter - Four accused gang members (Native Syndicate Killers) committed a home invasion to search for drugs and money - Several occupants of the home were attacked and were struck with a bat, metal pipe and fists and kicked - Two victims were stabbed - One victim (age 19) died - The young native accused Dallas Keepness, who was 24 years old at the time of the offences, pled guilty to manslaughter and two counts of aggravated assault - He had 33 prior convictions, including five for violence - He had a horrific childhood but had made efforts to overcome it - He had witnessed violence in the past and had been the victim of violence - Grade 10 education - He expressed understanding of the seriousness of his actions - The trial judge held that the applicable sentence range was four to 12 years - The court stated that home invasions were a "scourge of the community" and sentenced the accused to 11.5 years' imprisonment for manslaughter and seven years' imprisonment (concurrent) for the aggravated assaults less four years credit for pre-sentence custody - The Saskatchewan Court of Appeal increased the manslaughter sentence to 15 years - The sentencing judge erred in principle by considering herself limited by a range with an upper end of 12 years given the gravity of the offence (a true home invasion) - These were brutal attacks on three teenagers in their own bedrooms, resulting in the death of one, committed by four individuals acting in concert, under the banner of a gang - The credit for pre-sentence custody and concurrent sentences of seven years for the aggravated assaults remained undisturbed.

Criminal Law - Topic 5882

Sentence - Manslaughter - Four accused gang members (Native Syndicate Killers) committed a home invasion to search for drugs and money - Several occupants of the home were attacked and were struck with a bat, metal pipe and fists and kicked - Two victims were stabbed - One victim (age 19) died - The young native accused Michael Keepness, who was 20 years old at the time of the offences, pled guilty to manslaughter and two counts of aggravated assault - He had 19 prior convictions, including four for violence - He had a horrific childhood but had made efforts to overcome it - He had witnessed violence in the past and had been the victim of violence - He expressed great remorse - The sentencing judge held that the applicable sentence range was four to 12 years - The court stated that home invasions were a "scourge of the community" and sentenced the accused to 11.5 years' imprisonment for manslaughter and seven years' imprisonment (concurrent) for the aggravated assaults less four years credit for pre-sentence custody - The Saskatchewan Court of Appeal increased the manslaughter sentence to 15 years - The sentencing judge erred in principle by considering herself limited by a range with an upper end of 12 years given the gravity of the offence (a true home invasion) - These were brutal attacks on three teenagers in their own bedrooms, resulting in the death of one, committed by four individuals acting in concert, under the banner of a gang - The credit for pre-sentence custody and concurrent sentences of seven years for the aggravated assaults remained undisturbed.

Criminal Law - Topic 5882

Sentence - Manslaughter - Four accused gang members (Native Syndicate Killers) committed a home invasion to search for drugs and money - Several occupants of the home were attacked and were struck with a bat, metal pipe and fists and kicked - Two victims were stabbed - One victim (age 19) died - The young accused native Pewean, who was 24 years old at the time of the offences, pled guilty to manslaughter and two counts of aggravated assault - He had 41 prior convictions, including five for violence - He had a horrific childhood but had made efforts to overcome it - He had witnessed violence in the past and had been the victim of violence - Grade 10 education - The sentencing judge held that the applicable sentence range was four to 12 years - The court stated that home invasions were a "scourge of the community" and sentenced the accused to 11.5 years' imprisonment for manslaughter and seven years' imprisonment (concurrent) for the aggravated assaults less four years credit for pre-sentence custody - The Saskatchewan Court of Appeal increased the manslaughter sentence to 15 years - The sentencing judge erred in principle by considering herself limited by a range with an upper end of 12 years given the gravity of the offence (a true home invasion) - These were brutal attacks on three teenagers in their own bedrooms, resulting in the death of one, committed by four individuals acting in concert, under the banner of a gang - The credit for pre-sentence custody and concurrent sentences of seven years for the aggravated assaults remained undisturbed.

Criminal Law - Topic 5882

Sentence - Manslaughter - [See both Criminal Law - Topic 5846.5 ].

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See first, second and third Criminal Law - Topic 5882 ].

Cases Noticed:

R. v. Zimmer (1991), 89 Sask.R. 281; 63 C.C.C.(3d) 61 (C.A.), refd to. [para. 17].

R. v. Morgan, 1999 SKCA (SentDig) 10, refd to. [para. 17].

R. v. Key (C.G.) (2000), 199 Sask.R. 239; 232 W.A.C. 239; 2000 SKCA 127, refd to. [para. 17].

R. v. Harper (M.D.) - see R. v. Littlewolfe (C.B.) et al.

R. v. Littlewolfe (C.B.) et al. (2002), 227 Sask.R. 245; 287 W.A.C. 245; 2002 SKCA 143, refd to. [para. 17].

R. v. Hathway (W.G.) (2008), 327 Sask.R. 129; 2008 SKQB 480, refd to. [para. 18].

R. v. Jimmy (D.T.) (2009), 330 Sask.R. 306; 2009 SKQB 124, refd to. [para. 18].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 19].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 19].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 19].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 22].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 22].

R. v. Cope (1987), 59 Sask.R. 161 (C.A.), refd to. [para. 23].

R. v. Lawrence (N.A.) (1999), 172 N.S.R.(2d) 375; 524 A.P.R. 375 (C.A.), refd to. [para. 26].

R. v. Bank, [2000] O.J. No. 3682 (C.A.), refd to. [para. 26].

R. v. Atherley (D.) et al., [2009] O.A.C. Uned. 102; 2009 ONCA 195, refd to. [para. 27].

R. v. Baptiste (C.) (1998), 168 Sask.R. 189; 173 W.A.C. 189 (C.A.), refd to. [para. 33].

R. v. Montgrand (P.I.) (2007), 304 Sask.R. 150; 413 W.A.C. 150; 2007 SKCA 102, refd to. [para. 33].

R. v. Worm (J.) (2009), 330 Sask.R. 298; 2009 SKQB 122, refd to. [para. 34].

R. v. Pelly (R.J.) (2006), 279 Sask.R. 252; 372 W.A.C. 252; 210 C.C.C.(3d) 416; 2006 SKCA 60, refd to. [para. 35].

R. v. Matwiy (S.B.) and Langston (J.D.) (1996), 178 A.R. 356; 110 W.A.C. 356; 105 C.C.C.(3d) 251 (C.A.), refd to. [para. 35].

R. v. Seymour (T.A.) (1994), 116 Sask.R. 234; 59 W.A.C. 234 (C.A.), refd to. [para. 36].

Authors and Works Noticed:

Ruby, Clayton C., Davies, Breese, Doucette, Delmar, Loosemore, Sarah, Orkin, Jessica, and Wawzonek, Caroline, Sentencing (7th Ed. 2008), p. 814 [para. 27].

Counsel:

W. Dean Sinclair, for the Crown;

Andrew Hitchcock, for the respondent, Dallas Keepness;

Bruce Campbell, for the respondent, Michael Keepness;

James Pewean, unrepresented.

This appeal was heard on April 8, 2010, by Sherstobitoff, Jackson and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal. The following written reasons for judgment of the court were delivered on May 27, 2010, by Jackson, J.A.