R. v. Mckay (D.M.), 2013 NSPC 119

• Judge: Tax, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: November 06, 2013
• Jurisdiction: Nova Scotia
• Citations: 2013 NSPC 119;(2013), 338 N.S.R.(2d) 46 (PC)

R. v. Mckay (D.M.) (2013), 338 N.S.R.(2d) 46 (PC);

    1071 A.P.R. 46

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. DE.028

Her Majesty the Queen v. Devon Matthew Mckay

(2314956; 2402852; 2414633; 2424381; 2401610; 2423931; 2426103; 2566515; 2566519; 2468881; 2013 NSPC 119)

Indexed As: R. v. Mckay (D.M.)

Nova Scotia Provincial Court

Tax, P.C.J.

November 6, 2013.

Summary:

The accused pled guilty to 10 offences that had been committed on various dates between March 2011 and February 2013, including charges of robbery and break, enter and theft in business premises.

The Nova Scotia Provincial Court sentenced the accused to a total of 35 months' imprisonment. After receiving 10 months' credit for presentence custody, the accused's remaining sentence to be served was 25 months.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The 22 year old accused pled guilty to 10 offences that had been committed on various dates between March 2011 and February 2013, including one count each of robbery and break, enter and theft from a business - The robbery occurred in February 2012 - The break, enter and theft occurred in February 2013 - At issue was whether a conditional sentence order (CSO) under s. 742.1 of the Criminal Code was available - Amendments to s. 742.1 came into effect in November 2012 - The Nova Scotia Provincial Court concluded that a CSO was not available for either offence - As there was an implied threat of violence in the robbery, it was a "serious personal injury offence" within the meaning of s. 752 of the Criminal Code - Under the previous version of s. 742.1 (which applied to the robbery), a CSO was not available - Under s. 742.1(f)(ix) of the amended provision, a CSO was no longer an available sanction for a break, enter and theft of a premises other than a dwelling house - See paragraphs 54 to 61.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - The 22 year old accused pled guilty to 10 offences that had been committed on various dates between March 2011 and February 2013, including one count each of robbery and break, enter and theft from a business - The Nova Scotia Provincial Court sentenced the accused to a total of 35 months' imprisonment, including consecutive sentences of 16 months for the robbery and 18 months for the break, enter and theft - Both offences were serious - There was an implied threat of violence in the robbery - The break, enter and theft was planned and took a concerted effort - The sentences were to be served consecutively as the offences occurred almost one year apart - A significant aggravating factor was that the break, enter and theft occurred while the accused was on a recognizance - A fit and appropriate sentence for the break, enter and theft would have been two years' imprisonment - However, that would have resulted in a sentence that was unduly long for this youthful, first time offender - Applying the totality principle, the court reduced that sentence to one of 18 months and made a stand-alone restitution order in favour of the business's insurer - See paragraphs 26 to 51.

Criminal Law - Topic 5846.7

Sentencing - Considerations on imposing sentence - Offence committed while accused on recognizance or bail - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The 22 year old accused pled guilty to 10 offences that had been committed on various dates between March 2011 and February 2013, including one count each of robbery and break, enter and theft from a business - The Nova Scotia Provincial Court sentenced the accused to a total of 35 months' imprisonment - After receiving 10 months' credit for presentence custody, the accused's remaining sentence to be served was 25 months - The accused had been held in presentence custody from February 26, 2013 to September 9, 2013, when sentencing submissions were made - However, the accused had asked to address all of the matters on June 25, 2013 - The earliest court date that was available was September 9, 2013 - Those circumstances justified granting him 1.5 days' credit for each day spent in custody after June 25, 2013 - As of the date of sentencing, he had spent 235 days in custody with the last 115 days credited at a 1.5:1 rate for a total of 293 days of credit - This was roughly equivalent to 10 months - See paragraphs 64 to 66.

Criminal Law - Topic 5851

Sentence - Break and enter - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5854

Sentence - Theft - The 22 year old accused pled guilty to 10 offences that had been committed on various dates between March 2011 and February 2013, including one count of mischief, two counts of "theft under", three failure to appear in court charges and one breach of recognizance - The Nova Scotia Provincial Court sentenced the accused as follows: 15 days' imprisonment for mischief, 15 days for each count of "theft under", one day's imprisonment for the three failure to appear charges that would all be deemed to have been served by the accused's appearance in court and 15 days for the breach of recognizance, all of which were to be served concurrently with each other and with the other sentences imposed - See paragraph 63.

Criminal Law - Topic 5855

Sentence - Robbery - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5861

Sentence - Assault (incl. common assault) - The 22 year old accused pled guilty to 10 offences that had been committed on various dates between March 2011 and February 2013, including one count of assault resulting from an incident during which the accused threw an iced beverage at the victim, striking the victim in the face - The Nova Scotia Provincial Court sentenced the accused to a total of 35 months' imprisonment, including a one month consecutive sentence for the assault - This was an unprovoked attack on the street as the victim walked to his home - Although the assault did not inflict any serious physical injuries, there was a psychological impact - If this had been a stand-alone conviction, the court might have imposed a lengthy period of probation or a short conditional sentence order following by probation - However, the court had to take into account the principles of totality and proportionality - This was an incident of bullying that had to be denounced by the court - The accused's degree of responsibility was very high - One month of imprisonment was "just and appropriate" - See paragraphs 32 and 63.

Criminal Law - Topic 5890

Sentence - Mischief - [See Criminal Law - Topic 5854 ].

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See Criminal Law - Topic 5854 ].

Criminal Law - Topic 5921

Sentence - Being at large or failing to appear - [See Criminal Law - Topic 5854 ].

Cases Noticed:

R. v. Carvery (L.A.) (2012), 321 N.S.R.(2d) 321; 1018 A.P.R. 321; 2012 NSCA 107, refd to. [para. 4].

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. 17].

R. v. Priest (J.) (1996), 93 O.A.C. 163; 1996 CanLII 1381 (C.A.), refd to. [para. 23].

R. v. Otter (C.G.), [2010] A.R. Uned. 557; 2010 ABPC 218, refd to. [para. 34].

R. v. Pearson (R.R.) (2012), 538 A.R. 236; 2012 ABQB 240, refd to. [para. 34].

R. v. Ponticorvo (R.) (2009), 448 A.R. 275; 447 W.A.C. 275; 2009 ABCA 117, refd to. [para. 34].

R. v. Griffin (E.M.) (2011), 309 N.S.R.(2d) 250; 979 A.P.R. 250; 2011 NSCA 103, refd to. [para. 34].

R. v. McLeod, 2010 ONCJ 354, refd to. [para. 34].

R. v. Kotelko (B.E.J.) (2011), 272 Man.R.(2d) 87; 2011 MBPC 76, refd to. [para. 34].

R. v. Bourassa (P.T.) (2004), 227 N.S.R.(2d) 173; 720 A.P.R. 173; 2004 NSCA 127, refd to. [para. 34].

R. v. Johnson (B.J.) (2007), 258 N.S.R.(2d) 386; 824 A.P.R. 386; 2007 NSCA 102, refd to. [para. 41].

R. v. Benoit (R.C.) (2007), 260 N.S.R.(2d) 376; 831 A.P.R. 376; 2007 NSCA 123, refd to. [para. 41].

R. v. Leet (1989), 88 N.S.R.(2d) 161; 225 A.P.R. 161 (C.A.), refd to. [para. 45].

R. v. Butler (D.A.) (2008), 270 N.S.R.(2d) 225; 865 A.P.R. 225; 2008 NSCA 102, refd to. [para. 45].

R. v. Zong (1986), 72 N.S.R.(2d) 432; 173 A.P.R. 432 (C.A.), refd to. [para. 47].

R. v. McAllister (W.R.) (2008), 270 N.S.R.(2d) 237; 865 A.P.R. 237; 2008 NSCA 103, refd to. [para. 47].

R. v. Adams (P.F.) (2010), 291 N.S.R.(2d) 206; 922 A.P.R. 206; 2010 NSCA 42, refd to. [para. 47].

R. v. Fice (L.), [2005] 1 S.C.R. 742; 333 N.R. 243; 198 O.A.C. 146, refd to. [para. 60].

Counsel:

Janine Kidd, for the Crown;

Alfred Seaman, for the defence.

This matter was heard by Tax, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision orally on November 6, 2013.