R. v. Kunzig, 2011 MBPC 81

CITATION: R. v. Kunzig , 2011 MBPC 81 Date: 2011 12 13 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Melissa Weinstein ) for the Crown ) and ) ) ) Micah Franklin Smith Kunzig ) John McAmmond ) for the Accused ) ) ) ) Reasons for Decision delivered: ) December 13, 2011 M. J. SMITH P.J. [ 1 ] Micah Franklin Smith Kunzig pled guilty to committing a robbery. He was one of a group of three teenage individuals who confronted and intimidated three younger teenage boys one afternoon in the suburban Winnipeg neighborhood of Whyteridge.

The trio stole cell phones, a skate board, a wallet and its contents from the three victims. One of his fellow robbers was a young person at the time and is subject to the Youth Criminal Justice Act ; the other is an adult. [ 2 ] Mr. Kunzig comes before the court with no record of any sort. At the time of the offence (September 24, 2009) he was not quite two months past his 18 th birthday. As a result he is to be dealt with under the adult criminal justice system. [ 3 ] The Crown seeks a 12 month jail sentence. The Crown submits that robbery sentences should normally be in excess of two years citing R. v.

Wozny , 2010 MBCA 115 but due to the number of significant mitigating circumstances pertaining to Kunzig, a year’s incarceration is sufficient. The Crown says this is a serious personal injury offence and as such the accused is not entitled to consideration for a conditional sentence. [ 4 ] The defense seeks a suspended sentence and probation, a position supported by an extensive pre-sentence report prepared by a Restorative Resolutions probation officer. A number of reference letters were filed with the court including two letters from Kunzig’s psychiatrists.

There were no victim impact statements filed in this case, however the Crown attorney provided some information about the impact on the three victims of this crime. Sentencing principles [ 5 ] My task is to draw upon the relevant sentencing principles to determine an appropriate sentence, reflecting the gravity of the offence and the offender’s responsibility for it, with the overall goal being the protection of society. The principles are set out in

section 718 and 718.2 of the Criminal Code . Some of those objectives appear inter related. Some appear conflicting and at cross purposes

[ 6 ] The exercise is individualized focusing on the unique facts in each case. Not only the crime but also the offender must be considered in fashioning a just sentence. Circumstances of the offence [ 7 ] On the date in question Kunzig was a passenger in a car with three others: James, Davidson and a youth. The group was bored, all but Kunzig had been drinking, and one of them suggested that they “jack some people”. The group decided to go to the Whyteridge neighborhood to find some people to rob.

Kunzig knew two of the co-accused had a reputation for this type of behavior; they had told him stories about the crimes they had committed in the past. Despite this, he thought they were bluffing and would not follow through with the plan. [ 8 ] Once they arrived in Whyteridge, a normally safe and peaceful area of Winnipeg, Davidson and the youth co-accused spotted a victim and got out of the car. They told James that he and Kunzig were to drive around the block and pick them up after they committed the offence.

The Crown agrees that Kunzig was not involved in this first offence. [ 9 ] When Kunzig and James came back after driving around the block, it was apparent that Davidson and the youth had actually gone through with the plans. They got back into the car with blood on their hands. Kunzig says he was confused and surprised. He thought to himself what should I do? He was concerned about what his co-accused would think of him if he chose not to participate in the next robbery. He wanted to look like a “tough guy” in front of his friends.

So he volunteered stating “I’m doing the next one with you”. [ 10 ] The group then spotted the three teenage victims walking down the sidewalk. The youth, Kunzig and Davidson got out of the car. Kunzig admitted he was both excited and scared. He states he stood there blankly while his friends ordered the victims to empty their pockets. The youth grabbed a skateboard from the 15 year old victim. When the victims did not respond quickly enough, the youth threatened to assault them with the skateboard. Faced with the threat, the victims – the15 year old and two 13 year olds – turned the items over.

The robbers left with two cell phones, the skateboard, and one wallet and its contents ($25-$30, some identification, and a bus pass). Thankfully, no one was hurt. Kunzig later told the probation officer the experience made him feel in control and satisfied. [ 11 ] The three robbers then fled on foot towards a neighborhood school. The 15 year old victim, whose wallet had been stolen, saw Kunzig in that vicinity a short time later. He approached him and asked for his wallet back.

Kunzig returned the wallet, but the money and contents were gone. [ 12 ] One of the two 13 year old victims had contacted his mother, who arrived in her car. The two of them saw the three accused and attempted to confront them. The youth co-accused dropped the stolen skateboard and all three fled on foot. Davidson used one of the stolen cell phones to call someone for a ride and the three left the area. [ 13 ] The police were contacted and an investigation followed. The youth was arrested within a couple of weeks.

On the following day, on October 7, 2009, Kunzig was arrested and admitted his involvement in the robbery. [ 14 ] The 15 year old victim who had the contents of his wallet stolen was very upset by this loss. He suffered both inconvenience and some financial loss as a result. The cell phones were able to be replaced, apparently without cost to the victims. All three youths had a difficult time in that they were shocked to have something like this happen near their school in what they thought was a safe neighborhood. They were anxious and all took some counseling.

Not surprisingly, the parents of the three victims were also upset and concerned about the safety of the neighborhood. [ 15 ] In concluding this portion of the analysis I think it is fair to observe that this was an unsophisticated robbery involving three older teenagers bullying and intimidating three younger teenagers, and taking some of their possessions. I also note of the three offenders Kunzig was the least involved in the acts of intimidation and aggression. Essentially, he stood by as “muscle” in support of the actions of the other two.

After the robbery, as noted above, upon request of the 15 year old victim, Kunzig returned the wallet without incident. The fact that this victim felt safe enough to approach Kunzig with this demand adds to the impression that Kunzig, although present and a party to the robbery, was not particularly intimidating. I note that he is of rather diminutive stature. Circumstances of the offender [ 16 ] Mr.

Kunzig was released on a promise to appear on October of 2009 and has remained in the community for the past two years with no further charges. [ 17 ] On the date of the robbery, he was not quite two months past his eighteenth birthday. He has no criminal record – adult or youth. [ 18 ] The offender is fortunate to have a loving, supportive and dedicated family who has done everything within their power to help him mature into a responsible young adult.

However, Kunzig and his family have not had an easy time. [ 19 ] At a very early age, around kindergarten, it became evident that Kunzig suffers from some significant challenges. He has been diagnosed with a number of serious neurological and psychological issues. From 2003 until he became an adult, he was followed by the Tourette Syndrome Service at the St. Boniface Hospital.

A letter from the clinic confirmed diagnoses of Tourette’s disorder (which caused facial motor and vocal tics especially during his teenage years), ADHD, Pervasive Development Disorder – Not Otherwise Specified, Major Depressive Disorder, Learning Disorder and Substance Abuse. Prior to that (in 2001) he was diagnosed with Central Auditory Processing Disorder. [ 20 ] Despite all these very significant challenges, he was described by his parents and his extended family as having a sweet, kind and good disposition as a young boy and into his early teenage years.

[ 21 ] It has sometimes been said that it takes a village or community to raise a child. Unfortunately the community has not always been successful in this endeavor. Although Mr. Kunzig had friends as a young elementary student, when children are more accepting, his teenage school years were described as a nightmare by his parents as he was bullied incessantly. He had no friends. [ 22 ] Unfortunately, the young Kunzig made some bad choices in attempting to cope with his difficulties. We see this often in our court system.

Like many vulnerable young persons with significant mental health concerns, Kunzig magnified his problems when around the age of 16 he turned to alcohol and marijuana. When he moved to his last high school he began experimenting with harder drugs such as crack cocaine, ecstasy, OxyContin, crystal methamphetamine, and cocaine. He developed secondary disabilities: an addiction to drugs and alcohol. He was drawn to negative peers. There he met his co-accused who were immersed in that subculture and were involved in anti-social criminal activity.

He found a kind of acceptance by these individuals. [ 23 ] This formerly sweet, kind young boy transformed into an extremely difficult person and took out much of his dysfunction out on his own family members, including his parents, maternal grandparents and siblings. All of this stemmed from the use of drugs and alcohol. [ 24 ] Although it appears that he was not using drugs or alcohol on the day in question it was his involvement in this subculture that led to his association with the co-accused and participation in the robbery.

With these criminally involved individuals, he found the apparent acceptance and faulty friendship he craved. He has been described by his current psychiatrist – who has also diagnosed him with Asperger’s Disorder – as “quite vulnerable in that he has difficulty reading body language and therefore understanding the intention of other people when interacting with them”.

She observed that “due to his wish to “belong” he may be vulnerable to bullying and may easily be convinced to engage in activities that otherwise he would not have initiated.” [ 25 ] The adult co-accused, at the time of this offence, had a youth record for robbery and was on probation for that offence. He was a full participant in the violent robbery in Whyteridge that immediately preceded the offence before the courts. He has since been sentenced to the penitentiary for a series of offences.

They include the two robberies, and assault causing bodily harm for an earlier incident, another assault, and another robbery unrelated to the first two, as well as a breach of court order. Thus, the adult co-accused was clearly criminally entrenched, unlike Kunzig. [ 26 ] Since Kunzig committed the robbery, he has made significant changes in his life, although these changes did not begin to happen until sometime after the robbery offence. At the time he first met with Restorative Resolutions, he admitted that he had been on a four day cocaine binge. He was angry and defensive. He had no employment.

His parents wanted him out of their home due to his disrespectful behavior and out of control drug and alcohol use. Not surprisingly, he was initially assessed as a high risk to reoffend. [ 27 ] In the past seven months, significant changes have occurred. He has completed a 28 day residential treatment program at the Addictions Foundation of Manitoba. Although this is not the first time he has tried residential treatment, it was during this stint at residential treatment he came to the realization that he genuinely wanted to change. He followed that up with an aftercare program.

Initially he moved into a sober house and was there for a further two months. [ 28 ] He has become a dedicated participant in Alcoholics Anonymous, attending meetings six days a week. He has found an AA sponsor with whom he is significantly involved. That sponsor attended court at his sentencing hearing to show support. [ 29 ] He has taken drug and alcohol testing and his tests have come out clean. He is now back living with his parents, behaving respectfully, appropriately, and participating in helpful tasks. He is being open and honest with family members.

His parents, maternal grandparents, and maternal aunt and uncle have met with Restorative Resolutions and have stated he is now like his old, good self. [ 30 ] Because he has been able to maintain his sobriety, he has been able to focus on employment and a career path. He called an old family friend who is a hotel manager. That led to a job interview and a part time position initially. He did so well that he now has a full- time position and is excelling at his job with the hotel. He has plans to attend Red River College to further his education in the hospitality industry.

A reference letter has been filed with the court attesting to the strides he has made and the good potential he has in this field. [ 31 ] He has started to make plans to repay approximately $9,000 in debts he says he owes to family and friends that arose from the time he was abusing drugs and alcohol. He is doing this as part of one of the steps in the AA process. [ 32 ] He has separated himself from criminally oriented peers. The probation officer indicates that he went from engaging in zero positive activities to now spending time with family, working full time, and attending AA meetings six days a week.

He is involved in a positive friendship with a young adult he has known for some time. He is considering returning to some pro-social hobbies. [ 33 ] Since March of 2011 he has been under the care of psychiatrist Dr. Levin. She observed that he has attended all scheduled appointments and demonstrated a commitment to treatment. She has him on a medication regime which seems to be assisting him in dealing with various symptoms.

Among his current needs she identified the following: • A stable living environment which can provide support so he can maintain his sobriety. • Regular follow-up with a psychiatrist (myself) to monitor all his psychiatric conditions and provide early intervention if necessary… • Regular drug screen. • Micah has been working full-time at a hotel and also has applied to finish Grade 12 and to do accounting. He is hoping to get a position in hotel management in the near future. Therefore, at this point, no additional activities are recommended.

He is clearly future orientated and plans to improve his chances to have a better future by acquiring further education. • Micah has good cognitive abilities and it is my opinion that he is capable of advancing further both academically and

professionally. Should he remain abstain (sic) from illicit substances, he has a good chance to do well. • Due to his Asperger’s Disorder, Micah is quite vulnerable in that he has difficulty reading body language and therefore understanding the intention of other people when interacting with them.

Due to his wish to “belong” he may be vulnerable to bullying and may easily be convinced to engage in activities that otherwise he would not have initiated. • In addition to the above, Micah has sensitivity to sensory input (noise, light, touch) which would make a custody situation particularly harmful for him. [ 34 ] Because he has achieved success in sobriety and employment, his self-esteem which was compromised by his mental health issues and years of bullying has improved to the point that he can see himself as a positive functioning member of the community. [ 35 ] The offender is now doing very well in the community.

His mental health challenges will still remain. He is fortunate to be under the regular care of a psychiatrist with whom he has developed a good rapport. Recommendations of the Restorative Resolutions Pre-Sentence Report [ 36 ] The author of the Pre-Sentence Report noted that Mr. Kunzig has been candid, open, and engaged in the interview process. He has been reassessed as a medium risk to reoffend. The risk factors are companions and alcohol and drug issues. Mental health issues are also a factor. [ 37 ] The Restorative Resolutions report proposes a suspended sentence with a number of conditions.

A community-based plan proposed by Restorative Resolutions is intended to give Mr. Kunzig the needed control, support, and counseling required for him to remain abstinent from alcohol and drugs and to build and maintain relationships with pro-social supports in his life. For the initial period of the community-based plan, intensive supervision is proposed. The author of that report concludes that Mr.

Kunzig is now highly motivated and sincere in his efforts; the probation officer considers that the offender will be able to fulfill the conditions of the community-based plan. [ 38 ] The author explains that the Restorative Resolution plan is rigorous in holding the client accountable and that 88% of their clients complete their sentence without reoffending. Restorative Resolutions is an arm of Probation Services that offers more intensive support and supervision to offenders. The Crown’s Position [ 39 ] The Crown attorney conceded that the plan Restorative Resolutions has put forward is an excellent one.

She also observed that the offender is to be commended for the significant progress he has made.

She acknowledges a number of significant mitigating features including: • His youth – 18 at the time of the offence; • He comes before the court with no record; • He sought treatment for his substance abuse problem including residential treatment; • He has the support of family; • He has full time employment in a supportive work environment; • He is doing well in the community; • He has overcome a difficult background during which he faced violence and bullying himself as a youth; • He faces mental health issues. [ 40 ] I agree with the Crown’s assessment of these mitigating features.

To these features must be added his co-operation with the police upon arrest, his plea of guilty and the remorse that I accept as sincere. [ 41 ] The Crown submits that the aggravating factors include the young age of the victims; that Mr. Kunzig was part of a group going out with a plan to jack people; and that he chose to volunteer after the first robbery offence was committed by his companions and admitted he felt excited during the robbery. [ 42 ] I tend to agree with defense counsel’s comment that his admission that he was excited during the robbery should not be seen as an aggravating factor.

Rather it demonstrates that he was doing his best to be fully open and honest with the probation officer who wrote the report. Although he admitted being excited at the time, that admission should be placed in the context of his current position that he feels very badly for having bullied these victims, as he himself endured the pain of constant bullying as a teenager. [ 43 ] The Crown submitted that the paramount concern is public safety. The offence of robbery, the Crown argued, is inherently serious. The Crown submitted further that R. v.

Wozny , supra , sets a range for robbery starting at two years incarceration. The Crown submitted that objectives of general deterrence, specific deterrence and denunciation should be central. The Crown took the position, however, that specific deterrence appears to have been fulfilled as a result of the criminal process itself and the large strides offender has taken. [ 44 ] Because of the mitigating features, the Crown recommended a 12 month sentence of incarceration (rather than two years) with

probation to follow. Moreover, the Crown Attorney took the position that a conditional sentence was unavailable because robbery is aviolent offence. She observed there were threats by the co-accused while holding the skateboard above one of the victims head’s to theeffect of “don’t make me use this.” Because of this factor, the Crown submitted the court should find that the offence involved the use orattempted use of violence and constitutes a serious personal injury offence as defined in s. 752. Given this, a CSO cannot be considered. Defence submission [45] Mr.

McAmmond argues that this is an appropriate case for a suspended sentence with probation on the terms outlined byRestorative Resolutions report. He pointed out that prior to the 1997 creation of the conditional sentence regime, suspended sentenceswere indeed imposed in appropriate cases of robbery. [46] Mr.

McAmmond drew attention to the unsophisticated nature of this robbery, to his client’s lesser role in its perpetration, to thesignificant mitigating circumstances in the background of this offender, and to the very significant positive steps taken by the offendersince the offence in support of his argument for a suspended sentence. Analysis and decision [47] Had this robbery occurred at two months prior in time, when the offender was a youth, the appropriate sentence would havebeen probation and a youth record. A line has to be drawn somewhere by Parliament for the purpose of youth and adult sentencingregimes.

Because he falls on the adult side of that line, this offender now finds himself with an adult criminal record for robbery, a factthat will have long term, and in some respects life-long negative consequences for him. [48] Do sentencing principles require that in addition he be sentenced to a year in jail? As noted earlier sentencing principles arecontained in

section 718 to

section 718.2 of the Criminal Code. Those provisions direct courts to consider the least restrictive alternativesthat may be suitable in a given case and to look for every alternative to incarceration where appropriate. [49] When dealing with an individual such as this offender, the long-term protection of society can best be met through hisrehabilitation. He is clearly on that path now and achieving significant success in that goal. In his case, given his profile, incarcerationcould have a significantly negative impact on his rehabilitation.

His job would be lost; his AA sponsor would not be available to providethe intensive support he now does; he would not be able to continue regular follow-up with his psychiatrist; he would be placed in anenvironment with individuals with entrenched criminal attitudes and values; he would be housed with many drug or alcohol addicts. It isnot hard to see how immersing him in a prison environment while removing him from his considerable community supports could setback his rehabilitation and result in his becoming a significantly higher risk to public safety when released.

In fact, the rate of recidivismis significantly lower for clients of Restorative Resolutions who receive community based dispositions supervised by them than forindividuals receiving a jail sentence. [50] However, sentencing policy is not focused solely, or even primarily, on rehabilitation or what works best for the long termprotection of society concerning an individual offender.

Just desserts or retributive principles call for sentences which meetproportionality. [51] The fundamental principle of sentencing is proportionality: a sentence must be proportionate to the seriousness of the offenceand the offender’s responsibility for it. This means I must carefully consider both these factors. [52] In addition the Criminal Code and the courts require other sentencing objectives beyond rehabilitation to be given appropriateweight in determining a sentence.

Individual and general deterrence must be considered and often these are emphasized in robbery cases.The sentence must take into account and give appropriate weight to the various objectives of sentencing at play, and consideraggravating and mitigating circumstances. [53] It has long been the case that the principle of restraint is operative for youthful offenders. See: R. v. Demeter and Whitmore(1976), (ON CA), 32 C.C.C. (2d) 379 (Ont. C.A.).

The rationale must surely be the common sense realization thatsome – if not most – young adults lack maturity and life experience. [54] Our community understands that young adults sometimes behave foolishly, and some commit criminal acts. While they mustnot escape unpunished, their immaturity and lack of experience diminishes their level of responsibility and moral blameworthiness forcrimes they commit as compared to mature adults. It is only just that this be reflected in the sentence imposed. Beyond this, someoffenders such as Mr.

Kunzig must deal with mental health issues which may be given some weight in analysing their level ofresponsibility. [55] Courts have also held that particularly in the case of a youthful offender, the first sentence of imprisonment should focus on theparticular offender, including the requirements of individual deterrence. Its length ought not to be governed by the factor of generaldeterrence. R. v. Vandale and Maciejewski (1974), (ON CA), 21 C.C.C. (2d) 250 (Ont. C.A.). See also R. v.McCormick, (MB CA), [1979] 4 W.W.R. 453.

For youthful first offenders the court should place major emphasis onindividual deterrence and rehabilitation, rather than general deterrence, in determining an appropriate sentence. Here, however, theCrown did not argue that jail was required for individual deterrence. I find that jail is clearly not necessary to achieve that objective inthis case.

It would be counter-productive to rehabilitation, a very important objective here. [56] While general deterrence is still relevant, even if in an attenuated manner, and must be considered, it does not follow that only alengthy term of incarceration can properly respond to that objective. See: R. v. Morrissette (1970), (SK CA), 1 C.C.C.(2d) 307 (Sask. C.A.) at 310. [57] In R. v.

Kotelko, 2011 MBPC 76 I surveyed a number of cases at paragraph 197-209 where short periods of imprisonment wereimposed for robbery offences where the circumstances of the offences were significantly more serious than these in the case at bar. Idisagree with the Crown’s assessment that Wozny, supra, is of significant relevance here. I also disagree with the suggestion that theCourt of Appeal sets a starting point in excess of two years for robbery offences. For one thing, the convenience store robberies before

the Appeal Court were very different than this robbery. [58] In any event, it is wrong to postulate that general deterrence can only be effected by incarceration. In R. v. Leask, (MB CA), [1996] M.J. No. 586 the Court of Appeal overturned a one year prison sentence and imposed substantial fines ($5000)or community service (300 hours) on three young first offenders for assault causing bodily harm, the circumstances of which weredescribed as “brutal”.

Twaddle J.A., for a unanimous court, explained at paras. 5 and 6: 5 The sentence must be a deterrent one, to discourage these young men and others from engaging in such callous behaviour, but adeterrent sentence does not have to be an incarcetory one. A fine or order of community service, accompanied by supervised probation,can have a deterrent effect if substantial enough.

Such a sentence has a better chance of rehabilitating the offenders than one which placesthem in the company of experienced criminals and may cause them to lose their employment. 6 Taken by itself, the offence involved in this case merited a prison term, but the circumstances of the offenders militate against thatsanction and make it an unfit sentence.

As long as they are severely punished, society will be better served by efforts to rehabilitate themoutside the prison system. [59] It seems to me that notwithstanding there are different offences involved, the moral culpability of the offenders in Leask wasmuch higher than in this case. [60] The legislators see robbery as a serious offence, reflected in the maximum penalty of life imprisonment. However, robbery cancover a very large range of conduct, and offenders are unique. As a result, robbery sentences can cover a wide sentencing range,including, in rare cases, a suspended sentence (see R. v.

Carver, [1980] M.J. No. 257 (C.A.); R. v. Ramsay, [1985] M.J. No. 417 (C.A.)and R. v. Bartlett, [1961] M.J. No. 2 (C.A.)). [61] Moreover in considering both individual and general deterrence, the significance of a criminal record as part of the punishmentshould not be overlooked.

In McCormick, the Manitoba Court of Appeal noted at para. 21 that “a criminal record itself, and theconsequences which it carries, becomes part of the punishment, and should be so considered by the judge imposing sentence.” [62] Twelve months imprisonment for this youthful first offender who played a lesser role in this street level robbery is excessive,particularly given the mitigating circumstances. It is clearly disproportionate to the circumstances of the offence and the offender’soverall responsibility and moral culpability. [63] A shorter period of incarceration could be considered appropriate in this case.

The Court would then have to address whethersuch a sentence could be served in the community. Although there was a threat of violence here, I do not find that there was “the use orattempted use” of violence (see Kotelko, supra). It would not be difficult to consider the other criteria for a conditional sentence order,and fashion an appropriate community based disposition through that vehicle. [64] While the conditional sentencing regime was not intended to enlarge the use of jail sentences, in effect the availability of thatsentence perhaps has had that effect.

Courts did not need to engage in a careful consideration of suspended sentences during much of thepast number of years because a community-based disposition could readily be provided through the vehicle of a conditional sentenceorder. I would add that plea bargains during those years often led to joint recommendations of conditional sentence orders, to providegreater assurances to offenders that a community based disposition would result.

I note that some research studies have borne out the netwidening effect of the conditional sentencing regime. [65] I have concluded that this is one of those somewhat rare robbery cases where incarceration is not the appropriate sentence forthis offender. Case precedents establish that a suspended sentence can be imposed for this offence. When I look at the low level of therobbery offence, Mr. Kunzig’s minor role in it, along with his personal circumstances that explain in part his association with the co-accused, I find a jail sentence is not required.

I can include an element of general deterrence without incarceration. [66] If a suspended sentence is not appropriate in this robbery case, it is hard to envision circumstances where such a sentencewould be justified. The sentencing regime does not exclude suspended sentences for robbery, and in some cases, such as this one, that isthe most appropriate sentence.

Jail sentences are not required without exception in every case of robbery. [67] Mr, Kunzig’s participation in this incident of older teens acting as thugs and bullies to younger teen victims was certainlydeplorable and criminal and constituted the offence of robbery. Thankfully, however, no one was physically touched, let alone injured inthe encounter. No weapons were taken to the encounter. It was the youth who took the skateboard and opportunistically used it tothreaten and intimidate the three victims. There does not seem to have been planned use of this weapon or any other weapon. During theencounter Mr.

Kunzig essentially stood there. He was clearly acting as a follower. He returned the wallet when confronted by the 15 yearold victim within minutes of the robbery. The skateboard was also recovered almost immediately. The Crown explained that the cellphones were able to be replaced in circumstances that did not call for a request for restitution. On the scale of robberies, this one wastowards the lowest end. [68] As noted above, the impact of a conviction for robbery and the consequences of a criminal record is itself a significantpunishment and one that will have serious long term consequences for this offender.

Justice Twaddle in Leask, supra, observed thatgeneral deterrence could be effected by fines or community service in appropriate cases. Certainly significant monetary consequences areviewed as an effective mechanism for deterrence in cases of impaired driving which present a real threat to the community. [69] In circumstances of this case, I intend to include a measure of punishment and deterrence in the probation order. [70] As a term of his probation, the offender must pay $1,200 to the Whyteridge Community Centre (170 Fleetwood Road,Winnipeg, Manitoba), through Restorative Resolutions.

I also require that the offender pay restitution of $75 for the lost cash, bustickets, discount card and the inconvenience to the teenage victim in replacing those items stolen from his wallet.

[ 71 ] I have considered community service hours as recommended by Restorative Resolutions as a sentencing tool with a deterrent effect, as noted in Leask , supra . I have concluded that in the circumstances of this case the donation is more appropriate. The offender is working full time and hopes to return to school. A more direct payment to the community centre serves as both a symbolic means of restoration to that neighbourhood’s peace and an appropriate financial penalty. [ 72 ] Both amounts (the donation and restitution) are to be paid in full during a two year probationary term.

I expect Restorative Resolutions will work with the offender to develop a budget to ensure that appropriate payments are made to Restorative Resolutions and when paid in full, that they are forwarded to the individual victim and the Community Centre. [ 73 ] For the reasons explained, I suspend the passing of sentence on Mr. Kunzig.

Instead I am placing him on a period of two years of supervised probation on the following terms. • Keep the peace and be of good behaviour; • Appear before the court when required to do so by the court; • Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; • Report to Probation Services within two working days; • Be under the supervision of Restorative Resolutions and report as directed, including not less than once a week for the first three months of his order, and not less than once bi-weekly for the next three months and then monthly thereafter, unless more frequent reporting is required; • Reside as directed by Restorative Resolutions; • Attend, participate in and complete counselling, treatment or programs that may be deemed necessary by his probation officer; • Abstain absolutely from consumption or possession of drugs and alcohol, except that he may possess alcohol for employment purposes as approved by his probation officer; • Continue to attend appointments with Dr.

Levin, at the frequency she recommends; • Continue attending Alcoholics Anonymous and working with a sponsor to continue working through the 12 steps of the program; • Attend, participate in and complete the Criminal Thinking Errors Program as provided by Restorative Resolutions; • Pay $75 restitution to the victim for the contents of the stolen wallet, through Restorative Resolutions, within the first two months of the probationary period; • Pay $1,200 to Whyteridge Community Club, 170 Fleetwood Road, Winnipeg, Manitoba, through Restorative Resolutions, by the end of the probationary period; • Seek and maintain education and/or employment; • Abide by a curfew of 11:00 p.m. – 7:00 a.m. for the first six months of his probation, except for medical emergencies for himself or his immediate family or for employment purposes, or as otherwise may be permitted in advance by his probation officer;

• Maintain a landline telephone; • Answer the door or his landline telephone when the Winnipeg police, probation services or their designates conduct curfew checks; • Write a letter of apology to the victims to the satisfaction of his probation officer. If desired by the victims or their parents to meet with them or their parents or both to deliver the apology and to hear the effect of his crime on them; • Attend to the PSB 151 Princess within 14 days to provide a sample of his bodily substance for the DNA data bank. [ 74 ] Mr. Kunzig now has a criminal record for a serious offence.

He remains at risk due to addiction issues and the possibility that he may re-involve himself with criminally orientated associates. His psychological issues makes life more difficult for Mr. Kunzig than for most others. Still, he has considerable promise for a good life removed from criminal activity and the criminal justice system.

It falls on his shoulders to make the appropriate choices in the future, using the available community supports through Restorative Resolutions and the various healthcare providers and addictions services. [ 75 ] In addition to the period of probation, there will be a 10 year weapons prohibition under s. 109, and I also order that sample of his bodily substance be provided for the DNA data bank. Given his financial situation and other debts, I will waive costs and surcharge. _________________________ M. J. SMITH P.J.