R. v. Kotelko (B.E.J.) et al., (2011) 272 Man.R.(2d) 87 (PC)

• Judge: Smith, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: November 29, 2011
• Jurisdiction: Manitoba
• Citations: (2011), 272 Man.R.(2d) 87 (PC);2011 MBPC 76

R. v. Kotelko (B.E.J.) (2011), 272 Man.R.(2d) 87 (PC)

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. JA.010

Her Majesty The Queen v. Brent Edward Joseph Kotelko and Lynette Carol Lindell

(2011 MBPC 76)

Indexed As: R. v. Kotelko (B.E.J.) et al.

Manitoba Provincial Court

Smith, P.C.J.

November 29, 2011.

Summary:

The accused pleaded guilty to a robbery committed in December 2007, when they were 18 and 21 years of age respectively. At the time of sentencing, four years later, both accused had significantly changed their lives and were now positive, productive members of society. The accused sought conditional sentences. The Crown argued that sentences exceeding two years' imprisonment had to be imposed. Alternatively, if sentences of less than two years's imprisonment were appropriate, the Crown argued that a conditional sentence would still be unavailable, because robbery was a "serious personal injury offence" under s. 752 of the Criminal Code.

The Manitoba Provincial Court held that a sentence of under two years' imprisonment was appropriate, given that the accused were youthful first offenders. Although no physical force was used or attempted in the robbery, the robbery still constituted a "serious personal injury offence" where it caused serious psychological harm to the victim. Accordingly, a conditional sentence was unavailable. The court sentenced each accused to four months' imprisonment and a $2,000 fine.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - A conditional sentence was not available for a "serious personal injury offence", which was defined in s. 752(a)(i) of the Criminal Code to involve "the use or attempted use of violence against another person" - The accused committed a robbery while armed with a knife, which he used to cut the phone line - However, it was accepted that the accused neither used nor threatened to use the knife, nor did he brandish it - The Manitoba Provincial Court held that the "use or attempted use of violence" required actual violence or an attempt to use physical force against the robbery victim - Threats of violence, explicit or implicit, were not sufficient - See paragraphs 120 to 156.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See Criminal Law - Topic 5841 ].

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - The accused were youthful first offenders when they committed a robbery four years prior to their sentencing - The Manitoba Provincial Court stated that "it has long been the case that the principle of restraint is operative for youthful offenders. ...  Our community understands that young adults sometimes behave foolishly and some commit criminal acts. While they must not escape unpunished, their immaturity and lack of experience diminishes their level of responsibility and moral blameworthiness for crimes they commit as compared to mature adults. It is only just that this be reflected in the sentence imposed. As the moral blameworthiness and consequent degree of responsibility of youthful offenders is less, sentences of imprisonment should be shorter in duration compared with older offenders. Courts have also held that particularly in the case of a youthful offender, the first sentence of imprisonment should focus on the particular offender, including the requirements of individual deterrence. Its length ought not to be governed by the factor of general deterrence. ...  the primary consideration in determining the length the sentence for youthful first offenders is what period is needed to impress on the particular offender before the court the gravity of the offence. Such a term need not be lengthy." - See paragraphs 174 to 180.

Criminal Law - Topic 5848.8

Sentencing - Considerations on imposing sentence - First offence - [See Criminal Law - Topic 5841 ].

Criminal Law - Topic 5855

Sentence - Robbery - In 2007, the accused were immature 18 and 21 year olds who spent their money partying and socializing - To fund their lifestyle, the female accused devised a plan to steal monies from her employer (Dollarama) by staging a robbery while she counted the money in a back office - Unfortunately, another employee was with the female accused when the male accused arrived wearing a balaclava and armed with a knife - The male accused did not use or threaten to use the knife - He took $3,000, cut the phone line and fled - The other employee, who was not expected to be there, was traumatized and suffered lasting psychological damage - At the time of sentencing, four years later, both accused had significantly changed their lives and were now positive, productive members of society - Neither had criminal records - Although the robbery went unsolved for one year, community suspicions led both accused to confess and plead guilty - Both were remorseful and made full restitution - Alcohol and drugs were no longer an issue - Both were in stable relationships (female accused had 22 month old daughter) and were low risks to reoffend - The accused sought conditional sentences - The Crown argued that robbery mandated a sentence in excess of two years, even for first time offenders - Alternatively, if imprisonment for less than two years was appropriate, the Crown argued that a conditional sentence was still unavailable as the robbery constituted a "serious personal injury offence" (Criminal Code, s. 752) - The Manitoba Provincial Court sentenced each accused to four months' imprisonment plus a $2,000 fine - A sentence of less than two years' imprisonment was appropriate - Not all robberies constituted "serious personal injury offences" - However, although no physical force or violence was used or attempted in this case, the robbery was a "serious personal injury offence" because of the psychological damage inflicted on the unsuspecting employee - Accordingly, a conditional sentence was not available.

Words and Phrases

Serious personal injury offence - The Manitoba Provincial Court considered the meaning of the phrase "serious personal injury offence" as defined in s. 752(a) of the Criminal Code, R.S.C. 1985, c. C-46.

Cases Noticed:

R. v. King (1990), 66 Man.R.(2d) 130 (C.A.), refd to. [para. 70].

R. v. Wozny (C.P.) (2010), 262 Man.R.(2d) 75; 507 W.A.C. 75; 2010 MBCA 115, dist. [para. 71].

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. 85].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 85].

R. v. Carver (1980), 4 Man.R.(2d) 107 (C.A.), refd to. [para. 90].

R. v. Ramsay (1985), 36 Man.R.(2d) 184 (C.A.), refd to. [para. 90].

R. v. Bartlett, [1961] M.J. No. 2 (C.A.), refd to. [para. 90].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 2010 MBCA 35, refd to. [para. 100].

R. v. Thompson, 2009 ONCJ 359, refd to. [para. 104].

R. v. Neve (L.C.) (1999), 237 A.R. 201; 197 W.A.C. 201; 1999 ABCA 206, refd to. [para. 104].

R. v. Goforth (E.R.) (2005), 257 Sask.R. 123; 342 W.A.C. 123; 2005 SKCA 12, refd to. [para. 105].

R. v. Ponticorvo (R.) (2009), 448 A.R. 275; 447 W.A.C. 275; 2009 ABCA 117, refd to. [para. 106].

R. v. Lebar (S.M.) (2010), 260 O.A.C. 169; 2010 ONCA 220, disagreed with [para. 107].

R. v. Jolicoeur (R.) (2011), 265 Man.R.(2d) 225; 2011 MBQB 129, refd to. [para. 111].

R. v. Cook (D.A.) (2010), 259 Man.R.(2d) 109; 2010 MBQB 237, refd to. [para. 111].

R. v. Griffin (E.M.) (2010), 294 N.S.R.(2d) 117; 933 A.P.R. 117; 2010 NSPC 47, refd to. [para. 115].

R. v. Hendsbee (C.B.) (2009), 284 N.S.R.(2d) 57; 901 A.P.R. 57; 2009 NSPC 50, refd to. [para. 116].

R. v. Ullah, 2010 ONCJ 45, disagreed with [para. 117].

R. v. Thompson, 2010 ONCJ 107, disagreed with [para. 118].

R. v. McLeod, 2010 ONCJ 354, disagreed with [para. 130].

R. v. Nikolovski (A.) (1994), 73 O.A.C. 258 (C.A.), affing. 2002 CarswellOnt 4483 (Sup. Ct.), refd to. [para. 131].

R. v. Roy (D.W.) (2008), 307 Sask.R. 276; 417 W.A.C. 276; 2008 SKCA 41, refd to. [para. 137].

R. v. C.D., [2005] 3 S.C.R. 668; 343 N.R. 1; 376 A.R. 258; 360 W.A.C. 258, refd to. [para. 140].

R. v. Steele (J.M.) (2011), 267 Man.R.(2d) 91; 2011 MBQB 181, refd to. [para. 153].

R. v. Demeter and Whitmore (1976), 32 C.C.C.(2d) 379 (Ont. C.A.), refd to. [para. 174].

R. v. Vandale and Maciejewski (1974), 21 C.C.C.(2d) 250 (Ont. C.A.), refd to. [para. 176].

R. v. McCormick, [1979] 4 W.W.R. 453; 7 Man.R.(2d) 30 (C.A.), refd to. [para. 177].

R. v. Kennedy (K.L.) (2000), 148 Man.R.(2d) 69; 224 W.A.C. 69; 2000 MBCA 44, refd to. [para. 182].

R. v. Priest (J.) (1996), 93 O.A.C. 163; 110 C.C.C.(3d) 289 (C.A.), refd to. [para. 186].

R. v. Foianesi (L.) (2011), 262 Man.R.(2d) 312; 507 W.A.C. 312; 2011 MBCA 33, refd to. [para. 189].

R. v. Morrissette (1970), 1 C.C.C.(2d) 307 (Sask. C.A.), refd to. [para. 191].

R. v. Leask (J.C.) et al. (1996), 113 Man.R.(2d) 265; 131 W.A.C. 265 (C.A.), refd to. [para. 196].

R. v. Large (1984), 5 O.A.C. 328 (C.A.), refd to. [para. 202].

R. v. Cocq, [1991] O.J. No. 1939 (C.A.), refd to. [para. 203].

R. v. Lapointe-Melo, 2010 ONCJ 314, refd to. [para. 205].

R. v. Conlon (S.K.) (2011), 517 A.R. 365; 2011 ABPC 259, refd to. [para. 207].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 752 [para. 98].

Counsel:

Carrie D. Ritchot, for the Crown;

Hymie Weinstein, Q.C., for the accused, B.E.J. Kotelko;

Steven W. Brennan, for the accused, L.C. Lindell.

This matter was heard before Smith, P.C.J., of the Manitoba Provincial Court, who delivered the following judgment on November 29, 2011.