2000 SKCA 131 Docket: 105 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Vancise Sherstobitoff JJ.A. HER MAJESTY THE QUEEN and MICHELLE IRENE THORNE COUNSEL: Mr. E. Neufeld, Q.C. for the Crown Mr. W.P. MacIsaac, Q.C. for the Respondent DISPOSITION: On Appeal From: Q.B.C. 55 of 1998, J.C. of Regina Appeal Heard: November 16, 2000 Appeal Allowed: November 16, 2000 (orally) Written Reasons: November 23, 2000 Reasons By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Vancise SHERSTOBITOFF J.A. (orally) [1 Michelle Thorne pleaded guilty to a charge of manslaughter in respect of the death of Milan Kulas and was sentenced to 2½ years imprisonment. The Crown seeks leave to appeal the sentence on the grounds that it is not proportionate to the gravity of the offence and fails to meet the requirements of the law in respect of deterrence, denunciation and separation. [2 Ms. Thorne was an 18 year old single mother of one child and three months pregnant with second child at the time the crime occurred. She had no criminal record, but was at large on bail awaiting trial on other charges. We were never told what the charges were or what happened to them. [3 Ms. Thorne was drug addict. She had on previous occasions purchased drugs at the house in question from Dobra Provanovic, sometimes paying with sexual favours. On January 25, 1998, Ms. Thorne, her friend Charles Key, and third man who was never identified, formed common intention to rob the occupants of the house of either drugs or cash or both. What happened thereafter was described by Mr. Justice Cameron, of this Court, in his judgment rendered on October 19, 2000, respecting the sentence of Mr. Key on his conviction for manslaughter: [2] There were four suites in the block, three on the main flour and one in the basement. Dobra Prodanovic, known drug dealer, occupied main flour suite. His friend, Milan Kulas, who might also have been drug dealer, though that is not clear, lived in the basement suite. At around 3:00 a.m. Michelle Thorne, who was friend of Key's, roused Prodanovic and, when he came to the door she asked him to sell her some drugs. He said he had no drugs, told her to leave, and was about to close the door when she wedged her foot in the doorway and signalled to Key and another man, who were hiding in nearby bushes. The two of them were armed with tire irons, and on receiving Thorne's signal, they headed for the door and forced their way into the apartment along with Thorne. [3] Key and the other man attacked Prodanovic and knocked him down the stairs to the basement, where he and Key then tangled. In the meantime Thorne went to Prodanovic's suite and the other assailant broke down the door to the Kulas suite. Prodanovic got away from Key and fled to his suite, but Key followed and again attacked him with the tire iron, demanding money and drugs. Prodanovic resisted, and with that Key pulled knife, told him he would have to kill him, and attempted to stab him. Prodanovic deflected the thrust with his left hand, grabbed the knife with his right, and wrestled it from Key. Thorne, who had been rifling through the suite, then intervened and told Key to back off. He did so, went across to another suite occupied by Mr. Miller, broke down the door, and told Miller he would kill him if he called the police. With that, Key and Thorne, joined by the other assailant, left the apartment block. [4] Once they had gone, Prodanovic went to check on his friend Kulas. He found him lying on the steps with serious stab wounds, as result of which Kulas died. Apparently the other man with Key and Thorn, whose identity remains unknown, stabbed him to death. [4 Key, who had record of about 40 previous convictions, some for violent offences, was sentenced by the trial judge to four years imprisonment, but in doing so the judge credited him with already have served the equivalent of about four years because Key had spent some two years and three months in prison awaiting trial. The Crown appealed, and this Court, by the judgment referred to above, increased Key’s sentence to seven years imprisonment. [5 The considerations which governed the Crown’s appeal of Mr. Key’s sentence govern this case. [6 To once again use the words of Cameron J.A.: [8] This manslaughter was committed in manner and circumstance that obviously invited substantial penitentiary term. It resulted from common criminal enterprise, planned in advance and expected to be violent. One person was beaten, one was stabbed to death, and another had his door kicked down and his life threatened. This is an extremely frightening occurrence in community, and this type of conduct and level of violence is utterly appalling. [7 The sentence of 2½ years imposed by the trial judge did not comply with the fundamental principle of sentencing that the sentence be proportionate to the gravity of the offence. Nor did the sentence achieve the objective of denunciation of crimes of this nature. [8 The sentence of Mr. Key was increased by this Court to the equivalent of more than ten years imprisonment. The following factors mandate a lesser sentence for Ms. Thorne: (a) she had no criminal record; (b) she did not participate in the actual physical beating and stabbing of Prodanovic and Kulas, and intervened to stop the beating of Prodanovic, albeit only after she seemed satisfied that he had nothing to give the robbers; and (c) she seems to be doing well in all programs in prison. [9 Taking all of these factors into account, it is our view that fit sentence is five years imprisonment. The sentence imposed by the trial judge is set aside, and a sentence of five years imprisonment is imposed in lieu thereof.
The Crown sought leave to appeal the sentence of 2.5 years for manslaughter on the grounds it was not proportionate to the gravity of the offence and failed to meet the requirements of deterrence and denunciation. HELD: A sentence of 5 years of imprisonment was imposed. The sentence was set aside because it did not comply with the fundamental principle of sentencing that it be proportionate to the gravity of the offence nor achieved the objective of denunciation of crimes of this nature. The manslaughter resulted from a common criminal enterprise, planned in advance, and was expected to be violent. The accused pled guilty, had no criminal record, did not participate in the actual physical beating and stabbing of the victim who died from the wounds or of the other victim; she intervened to stop the beating although only after being satisfied the alleged the drug dealer had nothing to give the robbers.  The accused appeared to be doing well in the prison programs. The sentence of the co-accused who had a record of 40 previous convictions had been increased to the equivalent of more than 10 years imprisonment.