R. v. Moise (K.K.), 2015 MBQB 37

• Judge: Greenberg, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 03, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBQB 37;(2015), 316 Man.R.(2d) 120 (QB)

R. v. Moise (K.K.) (2015), 316 Man.R.(2d) 120 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MR.023

Her Majesty The Queen v. Kelly Kristopher Moise (accused)

(CR 13-01-32980; 2015 MBQB 37)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

Greenberg, J.

March 3, 2015.

Summary:

The 28 year old accused was convicted of 10 offences involving acts of domestic violence over a period of several months. Three charges were conditionally stayed.

The Manitoba Court of Queen's Bench sentenced the accused to concurrent sentences of four years' imprisonment on each of counts 1 (sexual assault), 2 (assault causing bodily harm) and 3 (uttering threats); two years concurrent on count 8 (assault causing bodily harm); 18 months concurrent on each of counts 6 (assault with a weapon) and 9 (possession of a weapon dangerous to the public peace); and six months consecutive for count 11 (breach of a recognizance). The global sentence of 4.5 years was reduced by 22.5 months for time served (1:1 credit), which left 31.5 months to be served. The court made the mandatory weapons prohibition under s. 109 of the Criminal Code and orders requiring the accused to provide a DNA sample and to comply with Sex Offender Information Registration Act for 20 years.

Criminal Law - Topic 76

Res judicata - Multiple convictions for the same subject matter precluded - General principles - The accused was convicted of 10 offences involving acts of domestic violence over a period of several months - At issue was the application of the Kienapple principle - Counts 6 (assault with a weapon), 7 (assault) and 10 (possession of a weapon dangerous to the public peace) related to an incident in which the accused held a knife to the complainant's throat and threatened her - Counts 5 (pointing a firearm) and 9 (possession of a weapon dangerous to the public peace) arose from a second incident on the same day as the incident with the knife - The Manitoba Court of Queen's Bench entered conditional stays on counts 5, 7 and 10 - The assault offence in count 7 duplicated the offence in count 6 - Further, there was obvious overlap between counts 5 and 9 - Finally, convictions could not be sustained for both assault with a weapon (count 6) and possession of a weapon dangerous to the public peace (count 10) - See paragraphs 8 to 15.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - The 28 year old accused was convicted of 10 offences involving acts of domestic violence over a period of several months - Three charges were conditionally stayed - The Manitoba Court of Queen's Bench sentenced the accused to concurrent sentences of four years' imprisonment on counts 1 (sexual assault), 2 (assault causing bodily harm) and 3 (uttering threats); two years concurrent on count 8 (assault causing bodily harm); 18 months concurrent on counts 6 (assault with a weapon) and 9 (possession of a weapon dangerous to the public peace); and six months consecutive for count 11 (breach of a recognizance) - The global sentence of 4.5 years was reduced by 22.5 months for time served (1:1 credit), which left 31.5 months to be served - Except for the breach of a recognizance, the offences were part of a continuous course of abusive conduct over nine or 10 months - The length of the sentence reflected the number of charges - The complainant suffered significant emotional trauma - The importance of condemning spousal abuse was pressing - The accused had a significant prior record - However, some circumstances diminished the accused's moral culpability, including those related to his aboriginal heritage and childhood of poverty, violence and abuse - Further, the accused was young and had taken steps while in custody to change his life - See paragraphs 31 to 50.

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - [See Criminal Law - Topic 5802 ].

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See Criminal Law - Topic 5802 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5802 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Criminal Law - Topic 5802 ].

Criminal Law - Topic 5861

Sentence - Assault (incl. common assault) - [See Criminal Law - Topic 5802 ].

Criminal Law - Topic 5871

Sentence - Possession and use or sale of weapons or ammunition - [See Criminal Law - Topic 5802 ].

Criminal Law - Topic 5883

Sentence - Assault with a weapon or assault causing bodily harm - [See Criminal Law - Topic 5802 ].

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See Criminal Law - Topic 5802 ].

Criminal Law - Topic 5895

Sentence - Threats - [See Criminal Law - Topic 5802 ].

Criminal Law - Topic 5932

Sentence - Sexual assault (incl. by multiple parties) - [See Criminal Law - Topic 5802 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 8].

R. v. Arnill (C.), [1999] O.A.C. Uned. 55 (C.A.), refd to. [para. 12].

R. v. Krug, [1985] 2 S.C.R. 255; 62 N.R. 263; 11 O.A.C. 187, refd to. [para. 13].

R. v. R.C.H. (2013), 303 Man.R.(2d) 39; 600 W.A.C. 39; 2013 MBCA 108, dist. [para. 34].

R. v. Harry - see R. v. R.C.H.

R. v. Wishlow (A.C.) (2013), 291 Man.R.(2d) 149; 570 W.A.C. 149; 2013 MBCA 34, refd to. [para. 36].

R. v. Gates (D.E.) (2002), 166 B.C.A.C. 197; 271 W.A.C. 197; 163 C.C.C.(3d) 274; 2002 BCCA 128, refd to. [para. 37].

R. v. Dodd (B.) (1999), 180 Nfld. & P.E.I.R. 145; 548 A.P.R. 145 (Nfld. C.A.), refd to. [para. 38].

R. v. Taylor (M.A.) (2010), 262 Man.R.(2d) 43; 507 W.A.C. 43; 2010 MBCA 103, refd to. [para. 45].

Counsel:

K. Scott Cooper, for the Crown;

Crystal L. Antila, for the accused.

This matter was heard by Greenberg, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment orally on March 3, 2015.