R. v. Mckay

R. v. Mckay

The court held that (1) the robbery involved an implied threat of violence and therefore constituted a 'serious personal injury offence' under s.752 so a conditional sentence was unavailable for the February 2, 2012 robbery; (2) amendments to s.742.1 effective November 20, 2012 rendered a CSO unavailable for the February 26, 2013 break, enter and theft (indictable commercial premises) per statutory exclusions; (3) applying proportionality, parity and totality the appropriate individual terms were 16 months (robbery) and 18 months (break and enter) to be served consecutively with other shorter concurrent terms producing an aggregate sentence of 35 months, from which approximately 293 days...

Citation
2013 NSPC 119
Parties
Crown: Her Majesty the Queen; Defendant: Devon Matthew Mckay
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
6 November 2013
Procedural Posture
Criminal Sentencing / Sentencing (oral Decision)
Outcome
Guilty pleas accepted; global custodial sentence imposed: aggregate 35 months imprisonment with approximately 10 months (293 days) pre-sentence custody credited, leaving 25 months to serve; restitution, DNA and firearms orders granted; victim fine surcharge waived.
Legal Topics
Robbery, Break and Enter, Theft Under $5000, Mischief, Assault, Failure to Appear/breach of Recognizance, Pre Sentence Custody Credit, Conditional Sentence Availability, Restitution, DNA Order, Firearms Prohibition, Totality/parity/proportionality
Source Language
English
Criminal Law Sentencing Robbery Break and Enter Theft Under $5000 Mischief Assault Failure to Appear/breach of Recognizance +6 more

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Parties

Her Majesty the Queen

Crown

Devon Matthew Mckay

Defendant

Procedural Posture

Criminal Sentencing / Sentencing (oral Decision)

Legal Issues

  1. 1 What is a fit and appropriate global sentence for consolidation of ten offences?
  2. 2 Whether a conditional sentence order (CSO) was an available sanction for the robbery and the break and enter given the statutory scheme in force at the time of each offence
  3. 3 Appropriate credit for presentence custody and application of enhanced credit under s.719.3/719(3.1)

Ratio Decidendi

The court held that (1) the robbery involved an implied threat of violence and therefore constituted a 'serious personal injury offence' under s.752 so a conditional sentence was unavailable for the February 2, 2012 robbery; (2) amendments to s.742.1 effective November 20, 2012 rendered a CSO unavailable for the February 26, 2013 break, enter and theft (indictable commercial premises) per statutory exclusions; (3) applying proportionality, parity and totality the appropriate individual terms were 16 months (robbery) and 18 months (break and enter) to be served consecutively with other shorter concurrent terms producing an aggregate sentence of 35 months, from which approximately 293 days...

Court Disposition

Guilty pleas accepted; global custodial sentence imposed: aggregate 35 months imprisonment with approximately 10 months (293 days) pre-sentence custody credited, leaving 25 months to serve; restitution, DNA and firearms orders granted; victim fine surcharge waived.

Orders

  • Mischief (s.430(4)) March 27, 2011: 15 days custody to be served concurrently; restitution $821.04 to Scott Perkins (s.738)
  • Theft (s.334(b)) Dec 7, 2011: 15 days custody concurrent