Dated: 20010412 2001 SKCA 55 Docket: 205 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Tallis, Vancise Lane JJ.A. HER MAJESTY THE QUEEN and NELSON TONY KAHNAPACE COUNSEL: Mr. D.M. Brown, Q.C. for the Crown Mr. Reg Watson for the Respondent DISPOSITION: On Appeal From: Provincial Court Appeal Heard: April 12, 2001 Appeal Allowed: April 12, 2001 (orally) Written Reasons: April 19, 2001 Reasons By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Tallis The Honourable Mr. Justice Vancise LANE J.A. (orally) [1] The Crown seeks leave appeal the sentence imposed on the respondent after a sentencing circle. After pleading guilty to committing the offences of robbery and robbery with threats of violence contrary to s. 348(1)(b) and 334(2) respectively of the Criminal Code, he was sentenced to nine months time served, plus two years less one day conditional, including three months on electronic monitoring, plus two years probation with a ten-year firearms prohibition on each charge to be served concurrently. The respondent committed the offences while on probation. [2] The facts are essentially agreed and are as follows: On March 19, 2000, the respondent, Nelson Kahnapace, and co‑accused, Wayne Moshenko, did break and enter dwelling house in Regina, the residence of 68 year‑old man who lives alone, and committed robbery. The respondent was very intoxicated and did not participate in the beginning of the transaction. The co-accused told him they were going there because the victim had the keys to Moshenko's vehicle. Moshenko had given the victim the keys as security for some money. Once inside, though, the co-accused assaulted the victim, and when the respondent entered, he propped board against door to prevent the victim from escaping. The co-accused threatened to cut off the victim’s fingers and when he went to look for knife the respondent held the victim. The respondent took about $25 in cash from the premises. Apparently, the intruders were looking for money for drugs. [3] On March 20th the pair robbed pharmaceutical drugs from pharmacy in Regina and at the time used threats of violence. It was the co-accused who wielded long bladed knife and threatened the lives of the victim and threatened others in the store not to call the police while the respondent searched for drugs. According to the victim, the respondent yelled out to the co-accused to kill them. However, when someone did call the police neither the respondent nor the co-accused moved to carry out the threat. Although the robbery was extremely inept, and only few pills were taken, the victims were terrified. [4] The respondent emphasized he was on drugs at the time of the offences and the main player was the co-accused. The co-accused received sentence of seven years on the robbery and five years concurrent on the breaking and entering. [5] The respondent is 23 year old aboriginal who has prior record consisting of 42 criminal convictions including eight violent or weapons related offences. He has violated various forms of community release orders including bail and probation orders some 16 times. He has history of drug and alcohol abuse and has not attended treatment in the past. He has grade three education and does not have significant employment history. In pre-sentence report he was considered high risk to reoffend. [6] We must say at the outset the ordering of a sentencing circle was inappropriate in these circumstances given the level of violence, the respondent’s high risk to reoffend, his consistent ignoring of or refusing to follow court orders and the fact a penitentiary term was called for, and we are all of the view leave should be granted and the appeal allowed. The sentence is demonstrably unfit and falls outside the range of sentences previously imposed by this Court. The sentencing judge relied solely on the principle of rehabilitation and essentially ignored the other sentencing principles. The sentence does not reflect the gravity of the offences, the principle of deterrence, the need to denounce such activities, the sentence imposed on the co-accused, and the need to protect the public. [7] The trial judge further erred in first failing to determine whether penitentiary term was appropriate. conviction for either offence could lead to penitentiary term given the respondent’s record and his repeated failure to obey court imposed conditions. [8] This court has often expressed its condemnation of these activities and in particular its condemnation of home invasion robberies and the robberies of highly vulnerable businesses. See: R. v. Stroshein;[Footnote [1]] R. v. Severight; [Footnote [2]] R. v. Daniels; [Footnote [3]] R. v. Sangwais. [Footnote [4]] The public must be protected from this type of criminal behaviour and more severe sentence is called for. The appeal is therefore allowed, the sentence imposed below set aside and a sentence of four years imprisonment from this date on each charge to be served concurrently is hereby imposed. This sentence takes into account the time the respondent served both on remand and on electronic monitoring. [1][2001] S.J. No. 90, Q.L. [2](1996), 1996 CanLII 4934 (SK CA), 137 Sask. R. 306. [3][2001] S.J. No. 82, Q.L. [4](2000), 2000 SKCA 49 (CanLII), 189 Sask. R. 291.
The Crown sought leave to appeal a conditional sentence of 9 months of time served plus 2 years less 1 day, including 3 months on electronic monitoring, and 2 years probation with a 10 year firearm prohibition on each charge to be served concurrently. The sentence was imposed for robbery with threats of violence contrary to s.348(1)(b) and s.334(2) of the Criminal Code which were committed in March 2000 while the accused was on probation. The appellant and co-accused were convicted of breaking and entering a private residence. The accused took $25 from the premises and held the 68 year old victim while the co-accused went to look for a knife after threatening to cut off his fingers. The following day the two accused used threats of violence while robbing a pharmacy and a witness testified the accused yelled to the co-accused to kill the victims. The co-accused who was convicted of assault received 7 years in prison for the robbery concurrent with 5 years for the B &amp; E. The 23 year old aboriginal who had a Grade 3 education had a prior record of 42 criminal convictions including eight violent or weapons related offences. HELD: Leave was granted. The appeal was allowed. The sentence of 4 years in prison on each charge to be served concurrently took into account time served on remand and electronic monitoring. The sentence was demonstrably unfit and fell outside the range of sentences previously imposed. The sentencing judge relied solely on the principle of rehabilitation, essentially ignoring the other sentencing principles including the level of gravity, the principle of deterrence, the need to denounce such acts, the sentence imposed on the co-accused, and the need to protect the public. A sentencing circle was inappropriate given the level of violence, his risk to re-offend, his consistent ignoring or refusal to follow court orders, and the fact that a penitentiary term was called for in such circumstances. He had violated various forms of community release orders including bail and probation 16 times. He had a history of drug and alcohol abuse and had not attended treatment.