R. v. Steele (J.M.), 2013 MBQB 219

• Judge: McKelvey, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: September 12, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBQB 219;(2013), 296 Man.R.(2d) 212 (QB)

R. v. Steele (J.M.) (2013), 296 Man.R.(2d) 212 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. OC.010

Her Majesty The Queen v. John Melville Steele (accused)

(CR 10-01-30497; 2013 MBQB 219)

Indexed As: R. v. Steele (J.M.)

Manitoba Court of Queen's Bench

Winnipeg Centre

McKelvey, J.

September 12, 2013.

Summary:

Following a drug store robbery, the aboriginal accused was charged with robbery, disguise with intent and two counts of failing to comply with probation orders.

The Manitoba Court of Queen's Bench, in a decision reported at (2011), 264 Man.R.(2d) 37, convicted the accused. The Crown's application for an assessment of the accused in support of an application to have him declared either a dangerous or long-term offender was dismissed. The Crown sought a life sentence, based on the accused's circumstances and the offences' nature.

The Manitoba Court of Queen's Bench sentenced the accused to seven years' imprisonment for robbery, two years concurrent for disguise with intent, one year consecutive for one probation breach and one year concurrent for the other probation breach with credit on a one to one basis for 39 months of presentence custody.

Editor's Note: For the decisions regarding the Crown's application for an assessment of the accused in support of an application to have him declared either a dangerous or long-term offender, see (2011), 267 Man.R.(2d) 91; 2011 MBQB 181, affd. (2013), 288 Man.R.(2d) 304; 564 W.A.C. 304; 2013 MBCA 21.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences (incl. not criminally responsible, repeat, dangerous or long-term offenders) - [See Criminal Law - Topic 5849.10 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - Following a drug store robbery, the aboriginal accused was convicted of robbery, disguise with intent and two counts of failing to comply with probation orders - The Crown's application for an assessment of the accused in support of an application to have him declared either a dangerous or long-term offender was dismissed - The Crown sought a life sentence, based on the accused's circumstances and the offences' nature - The Manitoba Court of Queen's Bench sentenced the accused to seven years' imprisonment for robbery, two years concurrent for disguise with intent, one year consecutive for one probation breach and one year concurrent for the other probation breach with credit on a one to one basis for 39 months of presentence custody - The accused's aboriginal heritage had to be considered even though it did not appear that he was particularly involved in that culture - The fact that a life sentence was not imposed served, in part, to recognize the Gladue factors in existence here - There was extensive information before the court regarding the accused's unfortunate upbringing and constant contact with the criminal justice system - The court recognized the broad, systemic and background factors affecting aboriginal people and the priority that had to be afforded aboriginal cultures with respect to a restorative approach to sentencing - However, here, denunciation and deterrence had to be recognized in crimes of this nature, particularly given the accused's criminal background - See paragraphs 69 to 72.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Following a drug store robbery, the aboriginal accused was convicted of robbery, disguise with intent and two counts of failing to comply with probation orders - The Crown's application for an assessment of the accused in support of an application to have him declared either a dangerous or long-term offender was dismissed - The Crown sought a life sentence, based on the accused's circumstances and the offences' nature - The Manitoba Court of Queen's Bench sentenced the accused to seven years' imprisonment for robbery, two years concurrent for disguise with intent, one year consecutive for one probation breach and one year concurrent for the other probation breach with credit on a one to one basis for 39 months of presentence custody - The accused's behaviour during his incarceration precluded any other credit consideration - See paragraph 76.

Criminal Law - Topic 5848.6

Sentencing - Considerations on imposing sentence - Life imprisonment - [See Criminal Law - Topic 5849.10 ].

Criminal Law - Topic 5849.10

Sentencing - Considerations on imposing sentence - When maximum sentence available - Following a drug store robbery, the aboriginal accused was convicted of robbery, disguise with intent and two counts of failing to comply with probation orders - The Crown's application for an assessment of the accused in support of an application to have him declared either a dangerous or long-term offender was dismissed - The Crown sought a life sentence (the maximum sentence available for robbery), based on the accused's circumstances and the offences' nature - The Manitoba Court of Queen's Bench sentenced the accused to seven years' imprisonment for robbery, two years concurrent for disguise with intent, one year consecutive for one probation breach and one year concurrent for the other probation breach with credit on a one to one basis for 39 months of presentence custody - The accused had been involved in virtually an unbroken chain of criminal activity both in institutions and in the community since he was 10 years old - The accused could not be sentenced based on his extensive criminal record - However, history constituted a very strong predictor for future activity and risk - The many assessments that had been prepared demonstrated the accused's propensity for violence and criminal activity and his reluctance to follow treatment, programming and direction - Many of the accused's crimes had been committed while under the influence of substances or in order to obtain them - However, this was not the worst case nor the worst offender - This matter was a classic robbery where a threat of violence was used by an individual with a remarkable and unbroken record of criminal activity - While it might not be an exceptional case for which a life sentence was imposed, it was one that had to attract a significant sentence in order to address society's need for protection - See paragraphs 69 to 77.

Criminal Law - Topic 5855

Sentence - Robbery - [See Criminal Law - Topic 5849.10 ].

Criminal Law - Topic 5898

Sentence - Breach of probation - [See Criminal Law - Topic 5849.10 ].

Criminal Law - Topic 5935

Sentence - Disguise with intent - [See Criminal Law - Topic 5849.10 ].

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 4].

R. v. Cheddesingh (D.M.), [2004] 1 S.C.R. 433; 319 N.R. 94; 186 O.A.C. 184; 2004 SCC 16, refd to. [para. 39].

R. v. Nichol (1981), 13 Man.R.(2d) 381 (C.A.), refd to. [para. 41].

R. v. Elliot (R.D.) (1995), 64 B.C.A.C. 64; 105 W.A.C. 64 (C.A.), refd to. [para. 41].

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. 41].

R. v. Stairs (W.R.), 1987 CarswellOnt 2676 (Dist. Ct.), affd. (1994), 73 O.A.C. 79; 1994 CarswellOnt 2210 (C.A.), refd to. [para. 41].

R. v. McCormick - see R. v. Stairs (W.R.).

R. v. Fragoso (C.) (2008), 238 O.A.C. 31; 2008 ONCA 483, refd to. [para. 41].

R. v. McLeod, 2010 ONCJ 354, refd to. [para. 44].

R. v. Lebar (S.M.) (2010), 260 O.A.C. 169; 252 C.C.C.(3d) 411; 2010 ONCA 220, refd to. [para. 44].

R. v. Jolicoeur (R.) (2011), 265 Man.R.(2d) 225; 2011 MBQB 129, refd to. [para. 44].

R. v. Thompson, 2009 ONCJ 359, refd to. [para. 44].

R. v. Solowan (K.S.T.), [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, refd to. [para. 44].

R. v. Wozny (C.P.) (2010), 262 Man.R.(2d) 75; 507 W.A.C. 75; 2010 MBCA 115, refd to. [para. 44].

R. v. Angelillo (G.), [2006] 2 S.C.R. 728; 355 N.R. 226; 2006 SCC 55, refd to. [para. 44].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 2012 SCC 13, refd to. [para. 69].

R. v. L.L.G. (2012), 284 Man.R.(2d) 285; 555 W.A.C. 285; 2012 MBCA 106, refd to. [para. 69].

Authors and Works Noticed:

Ruby, Clayton C., Chan, Gerald J. and Hasan, Nader R., Sentencing (8th Ed. 2012), §§ 23.369, 23.403 [para. 54].

Counsel:

Cindy L. Sholdice, for the Crown;

J. David Soper, for the accused.

This matter was heard by McKelvey, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment orally on September 12, 2013.