R. v. Maroti (M.), (2010) 255 Man.R.(2d) 115 (CA)

• Judge: Steel, Freedman and MacInnes, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: January 11, 2010
• Jurisdiction: Manitoba
• Citations: (2010), 255 Man.R.(2d) 115 (CA);2010 MBCA 54;255 Man R (2d) 115

R. v. Maroti (M.) (2010), 255 Man.R.(2d) 115 (CA);

      486 W.A.C. 115

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. MY.050

Her Majesty The Queen (appellant) v. Milos Maroti (accused/respondent)

(AR 09-30-07210; 2010 MBCA 54)

Indexed As: R. v. Maroti (M.)

Manitoba Court of Appeal

Steel, Freedman and MacInnes, JJ.A.

May 20, 2010.

Summary:

The accused pled guilty to seven counts of robbery and was sentenced to three years' incarceration, concurrent on all counts. As a result of credit for 18 months of pretrial custody, the actual sentence to be served was reduced to one day plus three years of supervised probation, with conditions. The Crown appealed.

The Manitoba Court of Appeal held that the sentencing judge committed an error in law in the methodology used to arrive at the sentence; however, the court would not change the sentence imposed. Therefore, the court dismissed the appeal.

Courts - Topic 5

Stare decisis - Authority of judicial decisions - General principles - Authority and use of precedents - General - The Manitoba Court of Appeal discussed the principle of stare decisis in the sentencing context - The court stated, inter alia, that "The principle of stare decisis is, of course, alive and well in Manitoba and does form part of a proper sentencing analysis (and is in fact explicitly referred to in s. 718.2(b) of the Code). However, its application must be tempered by the very nature of the task. The authorities are replete with statements that sentencing is an inherently discretionary, individual, fact-based endeavour ... While other cases are of assistance to establish a range of sentences ordinarily imposed on similar offenders for similar offences, ss. 718 to 718.2 of the Code set out a group of principles that must be considered whenever a sentence is imposed. This analysis is mandatory and cannot be replaced by the mechanical application of stare decisis. General observations can be made in relation to offences that share certain common characteristics, but sentencing is still fundamentally an individual exercise. Although the reasons need not go over every detail, the judge must at least highlight the main points in a meaningful manner, explaining why he or she feels a certain sentence is most appropriate or what facts dictate that a particular precedent should be followed in a case. Every case is different and must be analyzed on its own facts" - See paragraphs 6 to 8.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - The 22 year old accused pled guilty to seven counts of robbery (robbing gas bars at knife point) which took place within a 10 day period - In total he robbed the gas bars of approximately $5,000 worth of cash and cigarettes - The robberies were motivated by the accused's addiction to crack cocaine - He was sentenced to three years' incarceration, concurrent on all counts - The Crown appealed, arguing that the seven robberies should not be treated as concurrent offences where the offences were distinct in terms of time, geographic location and involved distinct victims - The Manitoba Court of Appeal dismissed the appeal - The court accepted the sentencing judge's imposition of a concurrent sentence where the robberies took place over a short period of time and as part of a continuous drug-fuelled spree - See paragraphs 11 to 25.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - On a sentencing appeal the appropriateness of a concurrent sentence was in issue - The Crown suggested that there was "a hunger for a roadmap" on that issue and that the court should develop more specific guiding principles - The Crown suggested that the sentencing judge should conduct a normative inquiry as to the moral culpability of the offender with respect to each offence - The Manitoba Court of Appeal discussed this issue - The court stated that these situations were so fact-driven that an appellate court should think long and hard before limiting the discretion of the sentencing judge - It was therefore not advisable to list factors to be considered - Rather, the test should continue to rely on the discretion of the sentencing judge in analyzing the facts of the particular case in front of him/her - The court did not accept the Crown's suggestion that the judge should enter into a detailed inquiry with respect to the decisions made by the accused before each offence was committed - See paragraphs 11 to 20.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - The Manitoba Court of Appeal discussed the issue of when concurrent sentences should be imposed by a sentencing judge - The court stated, inter alia, that two points were clear from the case law - First that a sentencing judge had to use common sense to determine what was a reasonably close nexus between criminal events and second, while courts often imposed concurrent sentences on offences that were committed as part of a "spree", no court had offered a definite and comprehensive definition of "spree" - However, the time-frame of the "spree" in those cases generally ranged from one day to three months - See paragraphs 22 to 25.

Criminal Law - Topic 5830

Sentencing - Considerations on imposing sentence - General - The accused pled guilty to seven counts of robbery and was sentenced to three years' incarceration, concurrent on all counts - The Crown appealed, arguing that the sentencing judge did not appropriately consider the sentencing principles in coming to his decision - Rather, he appeared to have based his decision exclusively on the principle of stare decisis - The Manitoba Court of Appeal agreed that the sentencing erred in law in not referring to the relevant Code provisions or alluding to deterrence, denunciation, rehabilitation or any of the other sentencing factors - Further, he did not explain how the sentence imposed addressed those principles or aimed to achieve them - He did not explain how the punishment imposed was proportionate to the offence or to the accused's degree of moral blameworthiness - Although, the judge did commit an error, the court did not change the sentence imposed and, therefore, dismissed the appeal - See paragraphs 1 to 10.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents - [See Courts - Topic 5 and Criminal Law - Topic 5830 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused pled guilty to seven counts of robbery and was sentenced to three years' incarceration, concurrent - After credit for 18 months of pretrial custody, the actual sentence to be served was reduced to one day plus probation - The Crown appealed - In its factum, the Crown described the sentence as "1 day of jail plus probation following double-time credit for 18 months of pretrial custody" - Counsel argued that at sentencing: "The Crown sought a sentence of 5 years, minus credit for dead time. In the circumstances, a sentence of 1 day, plus credit for 18 months of pretrial custody, was unfit and requires the intervention of this Honourable Court" - The Manitoba Court of Appeal stated that "Describing the sentence in this manner sets up a comparison between apples and oranges. It leads the public to believe that the discrepancy between what the Crown thought appropriate and what the judge actually chose was greater than it was ... Describing sentences in the way done by the Crown in its factum muddies the waters. Comparing cases for precedential value becomes very difficult. The appropriate sentence for comparison purposes when referring to other cases or referring to arguments advanced by other counsel is the sentence imposed without credit for pre-sentence custody. That is the sentence that the judge thinks appropriate for an offender and an offence. The reduction for pre-sentence custody will of course vary in each case and reflects an entirely different sentencing principle" - See paragraphs 43 to 46.

Criminal Law - Topic 5855

Sentence - Robbery - The 22 year old accused pled guilty to seven counts of robbery (robbing gas bars at knife point) which took place within a 10 day period - In total he robbed the gas bars of approximately $5,000 worth of cash and cigarettes - He targeted the gas bars because he was a former employee and knew they would offer no resistance - He was arrested during one of the robberies - The robberies were motivated by the accused's addiction to crack cocaine - First offender - Strong family support and enjoyed a positive upbringing - Was remorseful and entered guilty pleas quickly - He was sentenced to three years' incarceration, concurrent, but after taking into account time served, the actual sentence was reduced to one day - The Crown appealed, arguing that the sentence was unfit - The Manitoba Court of Appeal opined that it would have imposed four years' incarceration had it been sentencing at first instance; however, having regard to the accused's progress since his release, neither the accused or the community would be well served by re-incarcerating him - Thus the court concluded that the sentence imposed by the sentencing judge was fit in the circumstances and dismissed the appeal - See paragraphs 26 to 42.

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. 6].

R. v. F.C.G. (1997), 118 Man.R.(2d) 132; 149 W.A.C. 132 (C.A.), refd to. [para. 6].

R. v. Grant (I.M.) (2009), 236 Man.R.(2d) 54; 448 W.A.C. 54; 2009 MBCA 9, refd to. [para. 12].

R. v. Lagimodiere (S.M.E.) (2008), 231 Man.R.(2d) 261; 437 W.A.C. 261; 2008 MBCA 137, refd to. [para. 12].

R. v. Arbuthnot (S.M.) (2009), 245 Man.R.(2d) 244; 466 W.A.C. 244; 2009 MBCA 106, refd to. [para. 13].

R. v. E.T.P. (2002), 163 Man.R.(2d) 113; 269 W.A.C. 113; 2001 MBCA 194, refd to. [para. 16].

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. 17].

R. v. Li (P.S.) (2009), 267 B.C.A.C. 77; 450 W.A.C. 77; 2009 BCCA 85, refd to. [para. 17].

R. v. Hatch (1979), 31 N.S.R.(2d) 110; 52 A.P.R. 110 (C.A.), refd to. [para. 23].

R. v. Doiron (J.S.) (2005), 282 N.B.R.(2d) 81; 738 A.P.R. 81; 194 C.C.C.(3d) 468; 2005 NBCA 30, refd to. [para. 24].

R. v. Thompson (J.M.) (2008), 259 B.C.A.C. 160; 436 W.A.C. 160; 238 C.C.C.(3d) 193; 2008 BCCA 350, refd to. [para. 24].

R. v. Ward (S.P.) (2006), 224 B.C.A.C. 73; 370 W.A.C. 73; 2006 BCCA 153, refd to. [para. 24].

R. v. Howse (S.V.) (2006), 384 A.R. 176; 367 W.A.C. 176; 2006 ABCA 163, refd to. [para. 24].

R. v. Laprise (M.B.) (2009), 324 Sask.R. 263; 451 W.A.C. 263; 2009 SKCA 46, refd to. [para. 24].

R. v. Tallon (D.) (2003), 180 O.A.C. 145; 181 C.C.C.(3d) 261 (C.A.), refd to. [para. 24].

R. v. Hawkins (R.K.) (2008), 331 N.B.R.(2d) 129; 849 A.P.R. 129; 2008 NBCA 40, refd to. [para. 24].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 2010 MBCA 35, refd to. [para. 29].

R. v. N.A.S. (2007), 220 Man.R.(2d) 43; 407 W.A.C. 43; 2007 MBCA 97, refd to. [para. 32].

R. v. Morris (R.L.) (2003), 182 B.C.A.C. 156; 300 W.A.C. 156; 2003 BCCA 271, refd to. [para. 34].

R. v. Brogan (E.P.) (1999), 125 B.C.A.C. 310; 204 W.A.C. 310; 1999 BCCA 278, refd to. [para. 34].

R. v. Longtin (J.A.E.) (2001), 159 B.C.A.C. 315; 259 W.A.C. 315; 2001 BCCA 614, refd to. [para. 34].

R. v. McCowan (K.J.) (2010), 251 Man.R.(2d) 295; 478 W.A.C. 295; 2010 MBCA 45, refd to. [para. 41].

Authors and Works Noticed:

Ruby, Clayton C., Davies, Breese, Doucette, Delmar, Loosemore, Sarah, Orkin, Jessica, and Wawzonek, Caroline, Sentencing (7th Ed. 2008), paras. 14.9 [para. 19]; 14.10 [paras. 19, 22]; 14.12 [para. 19].

Counsel:

A.Y. Kotler, for the appellant;

S.E. Pinx, Q.C., for the respondent.

This appeal was heard on January 11, 2010, by Steel, Freedman and MacInnes, JJ.A., of the Manitoba Court of Appeal. The following judgment of the court was delivered by Steel, J.A., on May 20, 2010.