R. v. Sinkovits, 2023 MBKB 40

Date: 20230301 Docket: CR20-01-38363 (Winnipeg Centre) Indexed as: R. v. Sinkovits, Narvey, O’Hanley and Hall Cited as: 2023 MBKB 40 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: His MAJESTY THE king, - and - ) ) ) Michael M. Desautels Melissa A. Hazelton for the Crown KYLE SINKOVITS, JONATHAN BRADLEY NARVEY, Chelsea LYNNE O’Hanley and BOBBI- LYNE BELL HALL , accused. ) ) ) ) ) B. Scott Newman Mitch R. Merriott for the accused, Chelsea O’Hanley ) ) ) ) JUDGMENT DELIVERED ORALLY: February 27, 2023 Champagne J .

Introduction [ 1 ] On December 23, 2021, the Crown preferred a direct indictment charging Chelsea Lynne O’Hanley (“O’Hanley”), Bobbi-Lyne Bell Hall (“Hall”), Jonathan Bradley Narvey (“Narvey”) and Kyle Sinkovits (“Sinkovits”) with first-degree murder for killing Gerhard Reimer-Wiebe (“Gerhard”). [ 2 ] In addition, the four accused were jointly charged with committing indignity to a human body. They set the body of Gerhard on fire in an attempt to incinerate the body and eliminate evidence of the murder. [ 3 ] O’Hanley and Hall were also charged as accessories after the fact to the murder of Gerhard.

The Co-accused [ 4 ] The three co-accused resolved their charges. They were sentenced pursuant to a plea bargain with a joint recommendation. Narvey and Sinkovits pled guilty to second-degree murder. A conviction for second-degree murder carries an automatic sentence of imprisonment for life. The only issue for the sentencing judge was the length of time to serve before the accused could be eligible to apply for parole. The minimum length of parole ineligibility for second-degree murder is 10 years.

A judge can increase the length of parole ineligibility to a maximum of 25 years. [ 5 ] The Crown and defence made a joint recommendation that Sinkovits and Narvey serve 20 years before being eligible to apply for parole. The judge agreed with the recommendation. [ 6 ] Hall pled guilty to the offence of being an accessory after the fact to the murder of Gerhard. The maximum sentence for a

conviction of accessory after the fact to murder is imprisonment for life. Hall was sentenced to four years in prison. [7] O’Hanley pled not guilty to all three offences and proceeded to trial. After a lengthy trial, I convicted O’Hanley as a party to thesecond-degree murder of Gerhard. I also convicted her for committing an indignity to the body of Gerhard and as an accessory after thefact to the murder of Gerhard. [8] As previously noted, the offence of second-degree murder carries a mandatory life sentence.

The only issue left to determine iswhether the minimum ten-year period of parole ineligibility should be raised. [9] The Crown submits the period of parole ineligibility should be increased to 17 years. The defence argues the period of paroleineligibility should remain at the ten-year minimum. [10] The factors I must consider in determining parole ineligibility are set out in s. 745.4 of the Criminal Code, R.S.C., 1985, c. C-46. They include the character of the offender, the nature of the offence, and the circumstances surrounding its commission.

These factorsare to be considered in the context of general principles of sentencing and it is clear that increasing the period of parole ineligibility doesnot require unusual circumstances (R. v. Shropshire, (SCC)). Victim Impact [11] Exhibits S-3 and S-4 are two videos filed by the Crown. One video is from Gerhard’s wife, Anna. The other is a video ofGerhard from his time at Adult and Teen Challenge. The two videos and the evidence from the trial provide insight into the life ofGerhard and the profound sense of loss suffered by his family and community. [12] Gerhard is originally from Bolivia.

He and his wife Anna came to Canada in December 2015. They spoke Low German andwere of the Mennonite faith. They settled in Mitchell, Manitoba and started a family. They had two children who are approximately fiveand six years old. [13] Johan Hildebrand was a pastor at a local church who befriended Gerhard and Anna. Mr. Hildebrand told me about the strugglesGerhard had with alcohol and drug addiction. Mr. Hildebrand advised that he helped get Gerhard into addictions programming withAdult and Teen Challenge.

Gerhard spent an entire year in the program from December 2018 to December 2019. [14] The video marked S-4 shows a clean and sober Gerhard. He appears as a young man committed to leading a healthy lifestyle andsupporting his young family. Mr. Hildebrand had a job lined up for Gerhard at a local dairy farm upon his return to the community. Things went well at the beginningbut started to decline by March 2020. The farm work ended because Gerhard started to abuse drugs on the job and was let go on April17, 2020. [15] Gerhard’s addictions caused many issues for the young family. Mr.

Hildebrand did everything possible to assist the family. Hemanaged to convince Gerhard to return to Adult and Teen Challenge to address his addictions. Gerhard returned to the program on April27, 2020, but was unable to escape the grip of addiction. He walked away from the program on May 15, 2020. He was the victim of ahorrific murder and died June 19, 2020. [16] Anna and the two young children are without a husband and father. There will be a lifetime of questions and sorrow. Anna isdeeply committed to her faith. She has stated that she hopes to forgive those responsible for this terrible crime.

She is very fortunate tohave the support of her community. I am confident her friends and family will provide ongoing comfort and care for her difficultjourney. [17] I now turn to the factors I am required to consider to determine the appropriate period of parole ineligibility. NATURE AND CIRCUMSTANCES OF THE OFFENCE [18] The circumstances of this murder are horrific. The police investigation was long and complex. The trial took five weeks. I gavea lengthy decision setting out the evidence and my reasons for convicting O’Hanley. The full decision is at R. v. Sinkovits, Narvey,O’Hanley and Hall, 2022 MBQB 154.

For ease of reference, I provide a brief

summary of the facts. [19] Gerhard made his way to Winnipeg to feed his drug addiction. At some point, he met the four co-accused who were livingtogether at 381 Alfred Avenue. Gerhard was at 381 Alfred in the week leading up to his death. [20] O’Hanley resided at 381 Alfred. She moved in with Narvey and Hall. Sinkovits only recently started to reside there, as he wasHall’s new boyfriend. The residence was a drug den with people coming and going. [21] Hall awoke one day and alleged Gerhard sexually assaulted her. Narvey and Sinkovits beat Gerhard in the presence of Hall andO’Hanley.

The vicious assault did not end the matter. They kept Gerhard captive in the small basement of their home. Whileunlawfully confined, Gerhard was tortured for three or four days. Some of his fingers cut off piece by piece and then hacked off at thebase of the hand. After mutilating his body, there was no turning back. [22] On June 19, 2020, it was time to finish him off. The small kitchen was prepared. A large white tarp spread out on the floor as adrop cloth. Gerhard had a dog collar around his neck with a leash attached. He was taken to the kitchen.

Layers and layers of black tapewere wrapped around his mouth leaving his nostrils exposed so he could breathe. O’Hanley was there. She used the camera on herphone to document the end. A number of disturbing photographs were extracted from her phone. Copies are marked exhibit S-2. Theyshow Gerhard on the white tarp with bloodstains around his shoulders and head. The photoshoot encourages Narvey. Some photographsshow Narvey on top of Gerhard, posing for the camera. Others show Narvey doing something to Gerhard’s right eye area, whichcorresponds to injury detected in this area at autopsy.

[ 23 ] After he is dead and wrapped in the tarp, the four accused loaded the body into O’Hanley’s vehicle. O’Hanley drove them to a rural property in Portage la Prairie. The body was dumped in a field of long grass. O’Hanley drove them to a gas station. The four purchased snacks, drinks and a jug of gasoline. O’Hanley drove them back to the property. The body doused in gas and set on fire. After the fire went out, the remains were dragged to the bush line and partially buried. [ 24 ] O’Hanley testified at trial. She told me that she knew nothing of these crimes.

I found her to be dishonest and I rejected her story. She was convicted as a party to the murder of Gerhard. There was no evidence to prove O’ Hanley inflicted any of the injuries on Gerhard or she struck the match to ignite the gasoline. However, the totality of the evidence proved beyond a reasonable doubt that she formed a common intention to kill Gerhard and she aided and abetted in his murder. CHARACTER OF THE OFFENDER [ 25 ] Chelsea O’Hanley is 26 years old. She has one child. Narvey, the convicted co-accused, is the father of the two-year-old boy. O’Hanley comes from a loving and supportive family.

Her parents are the guardians of her young son. O’Hanley has provided 15 letters of support. They come from her parents, aunts and uncles, close friends, co-workers, and acquaintances. [ 26 ] Those who have witnessed O’Hanley grow up describe her as a bright, thoughtful, and giving person. She has a history of volunteering and employment since she was a teenager. She had hopes and aspirations. She was well on her way to achieving her goals.

She recently received two degrees from the University of Winnipeg and had employment lined up as a teacher in Winnipeg. [ 27 ] Her life journey took an awful turn when she met Narvey. He showered her with attention she craved. The relationship progressed quickly as she was smitten with him. He was her first serious boyfriend and intimate partner. [ 28 ] Narvey was entrenched in a criminal lifestyle. She bailed him out of jail, he promised to change. The relationship progressed and became abusive. She broke it off only to go back to him after more promises to change.

She was well aware of his drug dealing and violent episodes. She would drive him to complete drug transactions. She witnessed the violent assaults on others. [ 29 ] She was living with criminals. In time, she started to change. Her brother Chad spoke about the changes to her manner of speech and the way she disrespected their parents. Her Uncle Dwain and Aunt Adina Robertson describe how they lost touch with her after she met her boyfriend. O’Hanley stood by Narvey and it cost her a life sentence. [ 30 ] In preparation for sentencing, Dr. Kent Somers was retained to assess O’Hanley.

He is a clinical and forensic psychologist. His report is exhibit S-6. He assessed her mental status and her risk to offend in the future. He met with O’Hanley twice for a total of 4.5 hours. He interviewed her and administered a number of psychological tests. Dr. Somers opines she is a low risk to re-offend. [ 31 ] In assessing her mental status, Dr. Somers found O’Hanley to be developmentally typical in her language and memory functioning and concludes she does not suffer from any impairment in her general intellectual functioning.

I agree with this finding, as it is consistent with her education and employment history. [ 32 ] She presents with moderate levels of depression and anxiety. She suffers from a mild degree of stress but he noted her level of stress could be higher if not for medication. There is no indication of any substance abuse issues, which is consistent with the evidence I heard at trial. She scored quite high on a self-reporting measure for Post Traumatic Stress Disorder (“PTSD”). Symptoms include experiencing intrusive and unwanted memories including nightmares. During the trial, Dr.

Kolton commented on her symptoms of PTSD and opined they originate from the abusive relationship with Narvey. [ 33 ] I asked Dr. Somers if symptoms of PTSD could be, in part, from her involvement in this horrific murder. He agreed it is possible. Dr. Somers explained symptoms of PTSD could be persistent and pervasive. Treatment varies from medication, therapy and behaviour modification. Working with a therapist through counselling can be effective. Dr. Somers explained, the more verbal, the more sharing by the patient the better the outcome. [ 34 ] Dr.

Somers advises that clinical support is essential for O’Hanley’s wellbeing but it is not central to criminal rehabilitation. In essence, Dr. Somers opines she needs to work on her personal wellbeing, as there is possibility for deterioration in her functioning. It appears her symptoms of stress, depression, anxiety and elevated PTSD score are real. The registered psychiatric nurse from the Women’s Correctional Centre has observed these symptoms in O’Hanley. Dr.

Somers explained these symptoms can be treated and overcome or they can persist and erode a person’s wellbeing. [ 35 ] O’Hanley spoke about the domestic abuse in open court. The relationship with Narvey ended two years ago. I expect she would have no difficulty sharing the details of abuse with a therapist and benefit from that open and honest exchange. What will be more difficult for O’Hanley is to acknowledge her involvement in this horrific murder. She may choose to continue to fool herself and her family by denying her involvement. That is her choice.

I suspect doing so, it will mean ongoing nightmares and compromised wellbeing. [ 36 ] The letters of support describe her involvement with her young son. They describe a wonderful mother. That assessment is coloured by the relationship of the authors to O’Hanley and by the fact that O’Hanley’s parenting was under the direct and supportive supervision of her parents pursuant to conditions of her release. If O’Hanley’s wellbeing is compromised by a failure to address the noted areas of concern, I am certain her ability to parent a child or teenager down the road will also be compromised. [ 37 ] Turning to risk. Dr.

Somers administered the Levels of Service/Case Management Inventory. This is the same test often relied upon by Manitoba Corrections to assess risk. I acknowledge many of the measures rely upon self-reporting. As stated earlier, Dr. Somers opines she is a low risk to re-offend. The Crown submits I should give little or no weight to this opinion as O’Hanley’s responses cannot be trusted. The Crown correctly points out she has demonstrated her dishonesty throughout the police investigation, her omission of key facts when speaking to Dr. Kolton and her lying in court. I appreciate the Crown’s positon but I disagree.

[ 38 ] I find Dr. Somers’ comprehensive risk assessment supported by collateral information and some of the evidence I heard at trial. O’Hanley is a well-educated and intelligent young woman. She has a long history of pro-social involvement including employment and volunteering. She is fortunate to have strong family and community supports. She has strong desire to mother her child. All of these factors will serve her well when released. I believe she can return to being a productive member of the community. I agree with Dr. Somers that she is at a low risk to re-offend.

DISCUSSION [ 39 ] Sentencing is very much an individualistic exercise. Every sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality also applies to increasing parole ineligibility. Aggravating and mitigating factors will inform the decision to increase parole ineligibility ( R. v. Schuff , 2021 MBCA 54 ). [ 40 ] Narvey and Sinkovits were sentenced as principals for their roles in the murder of Gerhard. One may have inflicted more damage than the other person, but in the eyes of the law, they were equally responsible.

The identical sentence for both also underscores the principle of parity. [ 41 ] O’Hanley is convicted as a party to the murder of Gerhard. In the eyes of the law, she is equally responsible. The Crown acknowledges that her moral blameworthiness is less than Narvey and Sinkovits and that is reflected in their submission to have parole ineligibility set at 17 years. Anything less, they submit, fails to address the paramount principles of deterrence and denunciation. [ 42 ] The Crown highlights many aggravating factors. Gerhard was unlawfully confined. This was a prolonged attack over the course of days.

The attack was sadistic resulting in many injuries. Gerhard suffered a broken leg, fractured hand, numerous lacerations, amputated fingers and ultimately a crushed skull. [ 43 ] After death, Gerhard was wrapped in the tarp. His body loaded into O’Hanley’s vehicle. She drove them to a remote location. She drove them to buy gasoline. She drove them back to the field where the body was set on fire in an attempt to destroy evidence of his death. [ 44 ] The police investigation identified the four co-accused as persons of interest. The police sent out a media bulletin with their photographs.

The police did not knock on O’Hanley’s door to ask for an interview. O’Hanley took a calculated and deliberate position to get out in front of the investigation. She went to police headquarters to give a false and misleading story to protect herself and the others. It was a planned and deliberate attempt to evade capture. [ 45 ] Defence argues that the principle of restraint must be given serious consideration as O’Hanley is a first time offender. Defence acknowledges there are serious aggravating factors in this case but parole ineligibility should remain at the 10-year minimum.

If it is to be raised, defence submits it should only be increased by one or two years. [ 46 ] Defence points out all of the mitigating factors that I have discussed. At 26 years of age, O’Hanley is a youthful offender with good prospects of rehabilitation. She is well educated. Except for this incident, she has demonstrated a lifetime of pro-social behaviour. She has the necessary tools and support to be a productive member of the community. [ 47 ] The only real mitigating factors missing are an acknowledgement of responsibility and signs of remorse.

To be clear, pleading not guilty and having a trial are not aggravating factors. Rather, there is an absence of mitigating factors. I am certain that the guilty pleas entered by Narvey and Sinkovits were considered to be mitigating as the pleas demonstrate an acknowledgement of harm and a sign of remorse. I expect that the guilty pleas were significant and went a long way to securing the joint recommendation.

Conclusion [ 48 ] After careful consideration of the nature and circumstances of this murder and the background and character of O’Hanley, I find the appropriate period of parole ineligibility is 12 years. [ 49 ] Turning to count 1 on the indictment, I have convicted O’Hanley as a party to second-degree murder. I sentence her to imprisonment for life and set her parole ineligibility at 12 years. [ 50 ] Count 2 sets out the offence of committing an indignity to the body of Gerhard. The purpose of burning the body was to eliminate evidence of the murder. It is a serious matter.

The sentence is four years concurrent. [ 51 ] Count 3 is the offence of accessory after the fact to murder for assisting Narvey and Sinkovits to escape detection. O’Hanley took it upon herself to attend police headquarters and provide a planned and deliberate statement designed to protect Narvey and Sinkovits. The sentence is six years concurrent. [ 52 ] There is also a weapons prohibition for 10 years pursuant to s. 109 of the Code and an order pursuant to s. 487.051 to provide a bodily sample suitable for analysis and registration on the National Data Bank.

_______________________J.