R. v. Kalmikoff

R. v. Kalmikoff

The court found that the jury's acquittal on the firearm possession count and the manner of the jury charge meant the mandatory minimums for robbery tied to knowledge/use of a firearm were not properly engaged; the accused was convicted as a party (aider) but mens rea to trigger mandatory minimums was not established. The possession of stolen property count (Count 4) was stayed under the Kienapple principle as it arose from the same events as the robbery. Applying sentencing principles including denunciation, deterrence, rehabilitation and totality, the appropriate global sentence was 4 years 9 months imprisonment (counts 1, 5 and 6 concurrent; count 3 consecutive for 9 months), with...

Citation
2016 BCSC 1050
Parties
Crown: Regina; Accused: Krista Ann Kalmikoff
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
24 May 2016
Procedural Posture
Criminal Sentencing / Sentencing / Reasons for Sentence
Outcome
Guilty on Counts 1, 3, 5 and 6; Count 2 acquitted; Count 4 stayed. Global sentence of imprisonment: 4 years 9 months (counts 1,5,6 concurrent; count 3 consecutive 9 months). Credit for 124 days pre-sentence custody; effective sentence recorded as 4 years and 146 days. Ancillary orders: DNA sample, lifetime firearms...
Legal Topics
Robbery, Possession of Stolen Property, Flight From Police, Use of Firearm, Mandatory Minimums, Kienapple Principle, Totality Principle, DNA Order, Firearms Prohibition, Victim Fine Surcharge
Source Language
English
Criminal Law Sentencing Evidence Mental Health and Addiction Robbery Possession of Stolen Property Flight From Police Use of Firearm +6 more

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Parties

Regina

Crown

Krista Ann Kalmikoff

Accused

Procedural Posture

Criminal Sentencing / Sentencing / Reasons for Sentence

Legal Issues

  1. 1 Whether jury acquittal on firearm possession (Count 2) precludes finding of knowledge of firearm sufficient to trigger mandatory minimums for robbery
  2. 2 Whether the possession of stolen property conviction (Count 4) should be stayed under the Kienapple principle
  3. 3 Appropriate sentencing structure including concurrency/consecutivity and application of the totality principle

Ratio Decidendi

The court found that the jury's acquittal on the firearm possession count and the manner of the jury charge meant the mandatory minimums for robbery tied to knowledge/use of a firearm were not properly engaged; the accused was convicted as a party (aider) but mens rea to trigger mandatory minimums was not established. The possession of stolen property count (Count 4) was stayed under the Kienapple principle as it arose from the same events as the robbery. Applying sentencing principles including denunciation, deterrence, rehabilitation and totality, the appropriate global sentence was 4 years 9 months imprisonment (counts 1, 5 and 6 concurrent; count 3 consecutive for 9 months), with...

Court Disposition

Guilty on Counts 1, 3, 5 and 6; Count 2 acquitted; Count 4 stayed. Global sentence of imprisonment: 4 years 9 months (counts 1,5,6 concurrent; count 3 consecutive 9 months). Credit for 124 days pre-sentence custody; effective sentence recorded as 4 years and 146 days. Ancillary orders: DNA sample, lifetime firearms...

Orders

  • Stay of proceedings on Count 4 (possession of stolen property)
  • Imposed custodial sentence of 4 years 9 months; Counts 1, 5 and 6 to be served concurrently; Count 3 consecutive (9 months)