R. v. Therien, (1982) 42 N.B.R.(2d) 612 (CA)

• Judge: Ryan, Stratton and Angers, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 04, 1982
• Jurisdiction: New Brunswick
• Citations: (1982), 42 N.B.R.(2d) 612 (CA)

R. v. Therien (1982), 42 N.B.R.(2d) 612 (CA);

    42 R.N.-B.(2e) 612; 110 A.P.R. 612

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. Therien

(122/82/CA)

Indexed As: R. v. Therien

Répertorié: R. v. Therien

New Brunswick Court of Appeal

Ryan, Stratton and Angers, JJ.A.

October 4, 1982.

Summary:

Résumé:

The accused was convicted of two counts of armed robbery and two counts of wearing a mask with intent to commit an offence contrary to ss. 303 and 309(2) of the Criminal Code of Canada, respectively.

The New Brunswick Provincial Court sentenced the accused to three years imprisonment on each count of robbery and one year imprisonment on each count of being masked, all to run consecutively. The accused appealed from sentence.

The New Brunswick Court of Appeal, Angers, J.A., dissenting, allowed the appeal and held that all of the sentences should be served concurrently.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - The accused, who was a first offender, and an accomplice robbed two retail businesses on the same evening while masked - The accused was convicted of both robberies and two counts of wearing a mask with intent - The New Brunswick Court of Appeal held that the sentences of the accused to three years imprisonment on each count of robbery and one year imprisonment on being masked should be served concurrently.

Criminal Law - Topic 5832

Sentencing - Considerations - Rehabilitation - The New Brunswick Court of Appeal held that the rehabilitation of the accused should have been considered by the trial judge in sentencing a first offender for armed robbery, where he was unlikely to get into further trouble.

Criminal Law - Topic 5935

Sentence - Disguise with intent - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 309(2) - The accused first offender committed two armed robberies of retail businesses in one evening while masked - The New Brunswick Court of Appeal held that the accused's sentences of one year imprisonment on each count of being masked and three years imprisonment on each count of robbery should be served concurrently.

Criminal Law - Topic 5855

Sentence - Armed robbery - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 303 - The accused first offender committed two armed robberies of retail businesses in one evening while masked - The New Brunswick Court of Appeal held that the accused sentences of three years imprisonment on each count of robbery and one year imprisonment on each count of being masked should be served concurrently.

Criminal Law - Topic 6202

Sentencing - Appeals - Duties of appeal court - The New Brunswick Court of Appeal held that on an appeal from sentencing the appeal court's responsibility is to consider the fitness of the sentence - See paragraph 10.

Cases Noticed:

R. v. Drummond (1982), 38 N.B.R.(2d) 464; 100 A.P.R. 464, appld. [para. 8].

R. v. Iwaniw (1959), 127 C.C.C. 40, appld. [para. 10].

R. v. Chiasson (1975), 10 N.B.R.(2d) 696; 4 A.P.R. 696, appld. [paras. 11, 14].

R. v. Forbes (1976), 13 N.B.R.(2d) 279; 13 A.P.R. 279, consd. [para. 14].

R. v. Tapp (1976), 13 N.B.R.(2d) 234; 13 A.P.R. 234, consd. [para. 14].

R. v. Doucet (1977), 18 N.B.R.(2d) 137; 26 A.P.R. 137, consd. [para. 14].

R. v. Shirran (1978), 22 N.B.R.(2d) 530; 39 A.P.R. 530, consd. [para. 14].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 303, sect. 309(2).

Counsel:

David Lutz, for the appellant;

Stephen Wood, for the respondent.

This case was heard on September 16, 1982, at Fredericton, N.B., before RYAN, STRATTON and ANGERS, JJ.A., of the New Brunswick Court of Appeal.

On October 4, 1982, the judgment of the Court of Appeal was delivered and the following opinions were filed in English. A French language translation is also set out below.

RYAN, J.A. - see paragraphs 1 to 12;

ANGERS, J.A., dissenting - see paragraphs 13 to 20.

STRATTON, J.A., concurred with RYAN, J.A.