Docket: 1772 Her Majesty the Queen Appellant - v. -, 2010 SKCA 66

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 66 Date: 20100506 Between: Docket: 1772 Her Majesty the Queen Appellant - and - Joseph Randall McKay Respondent Coram: Klebuc C.J.S., Gerwing and Smith JJ.A. Counsel: W. Dean Sinclair for the Crown No one appearing for the Respondent Appeal:

From: Provincial Court Heard: May 6, 2010 Disposition: Allowed (orally) Written Reasons: May 17, 2010 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Chief Justice Klebuc The Honourable Madam Justice Gerwing Smith J.A. [ 1 ] This is a Crown appeal from sentence. Although the respondent was served with the notice of appeal and the Crown’s factum, he did not appear on the appeal, which was heard in his absence. The Crown appeal was allowed from the bench for the reasons that follow. [ 2 ] Mr. McKay was charged with robbery and with two counts of breach of bail conditions.

He spent five months in remand awaiting trial. He pled guilty to the two breaches and, after trial, was found guilty of the lesser included offence of attempted robbery on the first charge. The trial judge mistakenly believed that the offender had no previous record for violence, while, in fact, he had previously been convicted of assaulting a police officer.

The judge also considered that conviction for an attempted offence merited only half the sentence that would have been warranted by the circumstances had he been convicted of the full offence, and therefore concluded that an appropriate sentence would be ten months incarceration plus a period of probation of two years. After giving double credit for the time spent on remand, he sentenced the respondent, in relation to the conviction for attempted robbery, to one further day in jail and two years probation, and made a DNA order and a ten year firearms prohibition order.

Concurrent sentences of one day plus two years probation were given for the breach offences, based on a hypothetical sentence of four months, concurrent, for each, before credit for remand time. [ 3 ] The offences were committed while the respondent was on bail awaiting trial on a charge of aggravated assault. Conditions of bail required him to maintain a curfew of 9:00 p.m., abstain from alcohol and keep the peace. On the day in question, he violated his curfew, consumed alcohol and attempted the robbery of two young men, brothers, who were attempting to withdraw money from an automatic teller machine.

The brothers were both mentally challenged. The respondent accosted one of them and demanded $100. The victim did not have money in his account and only a few cents in his pocket, which he offered to the respondent. The respondent did not take the change, but demanded more money. He pushed the victim’s brother and punched the victim in the face.

A passing motorist saw what was happening and intervened, holding the respondent until the police arrived to arrest him. [ 4 ] It is our view that in the circumstances of this case the sentence was demonstrably unfit. [ 5 ] The trial judge erred in his assessment of the respondent’s previous criminal record, which included 11 bail violations, two escapes from lawful custody, two obstructions, one breach of probation, 16 property offences, one criminal driving offence, one drug offence and one assault.

He was 22 years old at the time of sentencing. [ 6 ] More significantly, the trial judge erred in his assessment of the seriousness of the attempted robbery offence. The respondent was unsuccessful in his robbery attempt only because his victim was virtually penniless. This lack of success does not warrant a reduction of the otherwise appropriate penalty by 50%. He committed

an act of gratuitous violence against the victim. The victim was particularly vulnerable. His disability would have been apparent to the respondent before the assault was committed.

He was at an automatic teller machine late at night. [ 7 ] Although his mother and grandmother spoke on behalf of the respondent at the sentencing hearing, they offered no reason for a reduced penalty other than a belief that jail is not a good place for a young person. [ 8 ] In light of the circumstances of the offence and the previous criminal record of the respondent it is our view that an appropriate sentence for the attempted robbery offence would be two years less a day. The sentence for each of the two breaches would be four months concurrent.

The sentence below is set aside with the exception of the DNA order and the firearms prohibition. As the trial judge

was prepared to give ten months credit for the time spent on remand, we substitute a sentence of incarceration of 14 months.