R. v. Kirklon (L.), 2015 SKCA 67

• Judge: Lane, Caldwell and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 21, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 67;(2015), 460 Sask.R. 233 (CA)

R. v. Kirklon (L.) (2015), 460 Sask.R. 233 (CA);

    639 W.A.C. 233

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JN.046

Her Majesty the Queen (appellant) v. Leagh Kirklon (respondent)

(CACR2474; 2015 SKCA 67)

Indexed As: R. v. Kirklon (L.)

Saskatchewan Court of Appeal

Lane, Caldwell and Whitmore, JJ.A.

June 17, 2015.

Summary:

A trial judge convicted the accused of robbery (stealing drugs from a pharmacy while threatening violence). See [2014] Sask.R. Uned. 37.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 449 Sask.R. 79, sentenced the accused to six years' imprisonment before credit for remand time. Where there was no evidence to explain who, if anyone, was responsible for the almost 1.5 years that it took to bring the case to trial while the accused was incarcerated, the court credited him with a total of 650 days (1.2 days' credit for each day he served on remand), leaving four years and 80 days remaining on his six year sentence. The Crown appealed with leave.

The Saskatchewan Court of Appeal allowed the appeal and substituted an eight year sentence for the six years imposed by the trial judge.

Criminal Law - Topic 5835

Sentencing - Considerations on imposing sentence - Protection of the public - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5855

Sentence - Robbery - The accused was convicted of robbery (stealing drugs from a pharmacy while threatening violence) - 43 years old - Métis - Lengthy criminal record - Most of his offences were motivated by the need for money to buy drugs or involved illegal drug activity - The trial judge found the accused to be seemingly incorrigible - He sentenced the accused to six years' imprisonment before credit for remand time - The Saskatchewan Court of Appeal increased the sentence to eight years before remand credit, holding that the trial judge failed to give adequate weight to protection of the public - The court did not intend to increase the established range of sentences for commercial robberies; rather, this was an exceptional case of a robbery committed on a vulnerable establishment by an incorrigible offender.

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5855 ].

Cases Noticed:

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. 7 ].

R. v. Rudolph (B.J.) (2012), 410 Sask.R. 134; 2012 SKQB 442, refd to. [para. 8].

R. v. Castle (A.E.) et al. (2009), 345 Sask.R. 95; 2009 SKQB 407, refd to. [para. 8].

R. v. Warkentin (C.) (1994), 125 Sask.R. 236; 87 W.A.C. 236 (C.A.), refd to. [para. 15].

R. v. Severight (A.D.) (1996), 137 Sask.R. 306; 107 W.A.C. 306 (C.A.), refd to. [para. 15].

R. v. Sangwais (L.D.) (2000), 189 Sask.R. 291; 216 W.A.C. 291; 2000 SKCA 49, refd to. [para. 15].

R. v. Cappo (J.D.) (1994), 120 Sask.R. 309; 68 W.A.C. 309 (C.A.), refd to. [para. 15].

R. v. Edinborough (G.S.) (2010), 357 Sask.R. 68; 2010 SKQB 167, refd to. [para. 16].

R. v. Taniskishayinew (C.W.) (2013), 434 Sask.R. 67; 2013 SKQB 416, refd to. [para. 16].

R. v. Parisian, 1997 SKCA (SentDig) 32, refd to. [para. 16].

R. v. Nanapay (E.) (1997), 158 Sask.R. 188; 153 W.A.C. 188 (C.A.), refd to. [para. 16].

Counsel:

Beverly Klatt, for the appellant;

Estes Fonkalsrud, for the respondent.

This appeal was heard on May 21, 2015, by Lane, Caldwell and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. Lane, J.A., delivered the following decision for the court on June 17, 2015.