R v Sinclair, 2017 MBCA 9

Citation: R v Sinclair, 2017 MBCA 9 Date: 20170116 Docket: AR16-30-08574 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Madam Justice Jennifer A. Pfuetzner BETWEEN: ) HER MAJESTY THE QUEEN ) T. L. Mariash ) for the Appellant Respondent ) ) A. C.

Bergen- and - ) for the Respondent ) ROBSON ISAAC SINCLAIR ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) January 16, 2017 HAMILTON JA (for the Court): [1] The accused received the following concurrent sentences, for a total sentence of seven and one-half years: • Unlawfully being in a dwelling-house with intent—seven and one-half years • Robbery—five years • Utter threats of death/bodily harm—two years • Fraudulent personation with intent to gain advantage—one year [2] The trial judge convicted the accused of the first three offences.

The accused pled guilty to the fourth. [3] The accused wishes to appeal the seven and one-half-year sentence for unlawfully being in a dwelling-house contraryto

section 349 of the Criminal Code. He concedes that the other sentences are fit. [4] The accused went to the victim’s home with an unnamed accomplice to enforce a drug debt of the victim, a crackcocaine addict. The accused and the accomplice gained entry to the victim’s home at 5:00 in the morning. The victim was asleep inbed. A female housemate, who is cognitively impaired and has mental health issues, opened the door. The victim was beaten, robbedand threatened with a steel object.

The vulnerable housemate was also threatened. [5] The accused has a lengthy criminal record, including a conviction for manslaughter in 2000 for which he received afour-year sentence.

A pre-sentence report, with Gladue commentary (R v Gladue, (SCC), [1999] 1 SCR 688), waspresented at the sentencing. [6] At the sentencing hearing, the Crown sought a sentence of eight years, after giving consideration to the Gladuefactors and relying on the seven to ten-year range for a home invasion robbery described in R v Matwiy (SB) and Langston (JD) (1996),1996 ABCA 63 , 178 AR 356 (CA), which was addressed by this Court in R v McCowan (KJ), 2010 MBCA 45, 251 ManR (2d)295; and R v Pakoo (KG), 2004 MBCA 157, 190 ManR (2d) 133.

The accused acknowledged that he committed a home invasion for thepurposes of an aggravating circumstance under

section 348.1 of the Code. However, he argued that it was not a home invasion thatattracted the seven to ten-year range because the Matwiy factors were not all present, given that there was no break and enter or forcibleentry of a dwelling-house. He sought a lesser penitentiary sentence. [7] The trial judge found that the facts supported a finding of a home invasion that warranted a sentence within the sevento ten-year range. [8] The accused argues that the trial judge erred in finding that the circumstances of this offence were a home invasion

calling for the seven to ten-year range of sentence. He also points to the fact that the offence of being unlawfully in a dwelling-house is a lesser included offence (maximum ten years) to break and enter with intent into a dwelling-house (maximum life).

He says that the robbery was the more serious offence and seeks a sentence of two to five years for the offence of unlawfully being in a dwelling-house, to be served concurrently with the five-year sentence for the robbery. [ 9 ] The Crown appropriately acknowledges that the seven and one-half-year sentence is significant for the offence of unlawfully being in a dwelling-house. However, the Crown argues that the sentence is entitled to deference, given the offences committed by the accused, his background and the entirety of the circumstances. We agree. [ 10 ] Appellate intervention is not warranted in this case.

While it may have been preferable, from an analytical perspective, if the trial judge had attributed the highest sentence to the robbery, we see no error in principle by the trial judge attributing the highest sentence to the offence of being unlawfully in a dwelling-house in the circumstances of this case. Deference is owed to the trial judge’s finding that the circumstances of this case were a home invasion. Furthermore, we are of the view that the seven and one-half-year sentence for these offences and this offender, is fit.

See R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089. [ 11 ] Leave to appeal is granted, but the appeal is dismissed. JA JA JA