R v Thompsett, 2020 MBCA 47

Citation: R v Thompsett, 2020 MBCA 47 Date: 20200428 Docket: AR19-30-09352 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Janice L. leMaistre Madam Justice Karen I. Simonsen BETWEEN : HER MAJESTY THE QUEEN ) J. H. Youn ) for the Appellant Respondent ) (via videoconference) ) - and - ) A. C.

Bergen ) for the Respondent JESSE GARRET THOMPSETT ) (via videoconference) ) (Accused) Appellant ) Appeal heard and ) Decision pronounced: ) April 28, 2020 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R , all appeals are heard remotely by videoconferencing until further notice. simonsen JA (for the Court): [ 1 ] The accused seeks leave to appeal, and if granted, appeals concurrent sentences of 27 months (less a credit of 11 months for pre-sentencing custody) imposed for the offences of flight from police officer and dangerous operation of a motor vehicle.

Both offences arise from a high-speed chase which occurred when the accused, who was operating a stolen vehicle, was pursued by the police through the streets of Winnipeg. [ 2 ] Sometime later, the accused breached his judicial interim release by absconding from the Behavioural Health Foundation (BHF), a residential treatment program, on the very day that he arrived.

He was sentenced to 45 days’ incarceration on the breach, prior to being sentenced for the offences now before this Court. [ 3 ] The accused asserts that the sentencing judge erred in principle by considering the breach conviction as an aggravating factor, thereby using it to punish him again for a past crime and to increase the sentences he imposed. [ 4 ] Although the sentencing judge described the accused’s conviction for the breach as “an aggravating factor”, we are not persuaded that this led him to misuse the conviction, or that it materially affected the sentences he imposed.

Reading his reasons as a whole, he did not use either the accused’s extensive criminal record or the breach conviction to re-sentence him for past crimes or impose a “double punishment” ( R v Taylor , 2004 CarswellOnt 3380, at paras 39-40 (CA) ; see also R v Wright , 2010 MBCA 80 at para 12 ). Nor did he use the breach conviction as aggravating, to increase the sentences he would have otherwise imposed. Rather, he explained that the accused leaving the BHF “serves as somewhat of a postscript or perhaps a future describer of where we are going to see you in the future.

I hope it is not, I sincerely hope it is not, but it does not serve as a confidence builder for me insofar as your future is concerned.” In other words, he considered the breach conviction for the purpose of assessing the accused’s prospects for rehabilitation, as he was entitled to do—and he arrived at sentences that were not unfit (see R v Golic , 2017 BCSC 2244 at para 19 ; and Clayton C Ruby et al, Sentencing , 9th ed (Toronto: Lexis Nexis, 2017) at para 5.120). [ 5 ] The accused also seeks to appeal the amount of a stand-alone restitution order made by the sentencing judge in favour of Manitoba Public Insurance (MPI) in the amount of $30,000.

Relying on fresh evidence, which we admitted at the appeal hearing, he says that the correct amount of MPI’s loss resulting from the chase is $11,692.10, and that the restitution order should be varied accordingly. The Crown consents to this variation, and we agree. [ 6 ] In the result, leave to appeal is granted, but the appeal from the 27- month sentences is dismissed. The appeal is allowed with respect to the restitution order in favour of MPI, which is varied to $11,692.10. The other ancillary orders made by the sentencing judge remain unchanged.

JA JA JA