R. v. Kelley (K.), (1994) 47 B.C.A.C. 71 (CA)

Judge:Wood, Rowles and Ryan, JJ.A.
Court:Court of Appeal of British Columbia
Case Date:May 26, 1994
Jurisdiction:British Columbia
Citations:(1994), 47 B.C.A.C. 71 (CA)
 
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R. v. Kelley (K.) (1994), 47 B.C.A.C. 71 (CA);

    76 W.A.C. 71

MLB headnote and full text

Regina (respondent) v. Kirk Kelley (appellant)

(V02035)

Indexed As: R. v. Kelley (K.)

British Columbia Court of Appeal

Wood, Rowles and Ryan, JJ.A.

June 27, 1994.

Summary:

The accused pleaded guilty to robbery and to assault causing bodily harm. He was sentenced to six years' imprisonment for robbery and two years' consecutive for the assault. The accused appealed against sen­tence.

The British Columbia Court of Appeal allowed the appeal.

Criminal Law - Topic 5802.1

Sentence - Concurrent sentences - Reduced total term - A 19 year old accused with a lengthy record was sen­tenced at the same time for robbery and assault causing bodily harm - The trial judge imposed sentences of six years and two years consecutive, respectively, for a total term of eight years - The British Columbia Court of Appeal held that the result was unduly long given the age of the accused and the fact that he had never been sentenced before to longer than one year - The court held that the sentence discouraged any likelihood of rehabilita­tion, which could not yet be discounted - The court made the two year sentence for assault concurrent rather than consecutive to the six year sentence imposed for rob­bery, for a total of six years' imprisonment - See paragraphs 21 to 23.

Criminal Law - Topic 5855

Sentence - Robbery - The 19 year old accused pleaded guilty to robbery - Armed with a replica of a gun, he and another menaced and threatened an elderly couple in their own home, seeking money to buy drugs - Both victims were roughed up and assaulted - Stolen were $125 in cash, the wife's wedding, engagement and anniver­sary rings - Lack of premeditation - Tur­bulent history, in and out of foster and special care homes from age 12 - Drug dependent - 26 convictions as a young offender, seven as an adult - On probation at the time of this offence - The British Columbia Court of Appeal affirmed a sentence of six years' imprisonment - See paragraphs 4 to 19.

Criminal Law - Topic 5883

Sentence - Assault causing bodily harm - The 19 year old accused pleaded guilty to assault causing bodily harm - Unprovoked attack on a complete stranger, leaving him with a head wound requiring six stitches - Turbulent history, in and out of foster and special care homes from age 12 - Drug dependent - 26 convictions as a young offender, seven as an adult - On probation at the time of this offence - The British Columbia Court of Appeal affirmed a sentence of two years' imprisonment, but made the sentence concurrent to a six year sentence for robbery imposed at the same time - See paragraphs 7 to 13, 20.

Criminal Law - Topic 6203

Sentence - Appeals - Variation of sen­tence - Grounds for varying sentence imposed by trial judge - Personal opinion by judge - A trial judge, on sentencing a repeat offender, stated "I find these actions, sir, despicable. The revulsion I feel for you, sir, I cannot express in words and I know the community expresses the same" - The British Columbia Court of Appeal held that such personal opinions ought not to form any part of a judge's reasons for imposing sentence - See para­graphs 13 to 15.

Cases Noticed:

R. v. Parinas (E.) (1993), 37 B.C.A.C. 41; 60 W.A.C. 41 (C.A.), consd. [para. 16].

Counsel:

Stephen D. Taylor, for the appellant;

Robert A. Mulligan, for the respondent, Crown.

This appeal was heard in Victoria, British Columbia, on May 26, 1994, before Wood, Rowles and Ryan, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered in Vancouver, British Columbia, by Wood, J.A., on June 27, 1994.

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