R. v. Nakamura

R. v. Nakamura

Kienapple did not apply because aggravated assault contains the distinct element of wounding objectively foreseen which is not an element of robbery under s.343(1)(c); given the offenders were youthful first offenders with strong mitigating factors and positive PSRs, a non‑custodial disposition was appropriate: passing of sentence suspended on the robbery count for both accused with two years' probation and 500 hours community service, and passing of sentence suspended on the aggravated assault count for Nakamura with probation; sentences to be concurrent; ancillary orders (10 year weapons prohibition, DNA, victim surcharge waived) imposed.

Citation
2012 BCSC 327
Parties
Crown: Regina; Accused: Yusaku Nakamura; Accused: Shane Nicholas Vincent
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
2 March 2012
Procedural Posture
Criminal Sentencing / Sentencing Hearing (reasons for Sentence)
Outcome
Passing of sentence suspended on Count 2 (robbery/assault with intent to steal) for both Nakamura and Vincent; passing of sentence suspended on Count 1 (aggravated assault) for Nakamura; both accused sentenced to non‑custodial dispositions.
Legal Topics
Aggravated Assault, Robbery (assault With Intent to Steal), Rule Against Multiple Convictions (kienapple), Probation and Community Service, Ancillary Orders (weapons Prohibition, Dna), Cultural Mitigation, Concurrent Sentences, Restitution
Source Language
English
Criminal Law Sentencing Evidence Immigration Law Youth Justice Aggravated Assault Robbery (assault With Intent to Steal) Rule Against Multiple Convictions (kienapple) +5 more

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Parties

Regina

Crown

Yusaku Nakamura

Accused

Shane Nicholas Vincent

Accused

Procedural Posture

Criminal Sentencing / Sentencing Hearing (reasons for Sentence)

Legal Issues

  1. 1 Whether Kienapple rule against multiple convictions bars conviction on aggravated assault in addition to robbery
  2. 2 Whether disputed out-of-court evidence and cultural background evidence should be accepted at sentencing
  3. 3 Appropriate sentence for two youthful first offenders given seriousness of offence and need for rehabilitation, denunciation and deterrence

Ratio Decidendi

Kienapple did not apply because aggravated assault contains the distinct element of wounding objectively foreseen which is not an element of robbery under s.343(1)(c); given the offenders were youthful first offenders with strong mitigating factors and positive PSRs, a non‑custodial disposition was appropriate: passing of sentence suspended on the robbery count for both accused with two years' probation and 500 hours community service, and passing of sentence suspended on the aggravated assault count for Nakamura with probation; sentences to be concurrent; ancillary orders (10 year weapons prohibition, DNA, victim surcharge waived) imposed.

Court Disposition

Passing of sentence suspended on Count 2 (robbery/assault with intent to steal) for both Nakamura and Vincent; passing of sentence suspended on Count 1 (aggravated assault) for Nakamura; both accused sentenced to non‑custodial dispositions.

Orders

  • Nakamura: passing of sentence suspended on Count 2; two years' probation; complete 500 hours community service; additional probation conditions including reporting to probation officer, residence restrictions, no contact with J.H.B., not attend places associated with J.H.B., counselling as directed, limited...
  • Nakamura: passing of sentence suspended on Count 1 (aggravated assault); term to be served concurrently with Count 2; same probation conditions and 500 hours community service imposed for Count 1