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Appeal from sentence allowed in part. The robbery sentence was upheld, but the consecutive sentence for use of an imitation firearm was reduced to 8 months.
The Court held that s.85(4) required the sentence for the imitation firearm offence to be consecutive, the parties and sentencing judge had inadvertently overlooked this mandatory requirement, and the Court of Appeal could vary the sentence on appeal to correct the error and avoid prejudice, resulting in specified concurrent and consecutive terms to give effect to both the mandatory statute and the parties' intent.
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The trial judge reasonably concluded beyond a reasonable doubt that the appellant was the person who threatened the security staff based on continuous observation by a key witness, corroborating circumstantial evidence (vehicle and imitation firearm located where the appellant emerged), and a proper assessment of minor inconsistencies; there was no legal error warranting appellate reversal.
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The court sentenced Brittani Hunter for two robberies and using an imitation weapon, imposing consecutive custody, probation, restitution, DNA, and firearm prohibitions.
The court acquitted Smith on uttering threats, but found him guilty on counts involving an imitation firearm, assault with a weapon, and possession for a dangerous purpose.
Sentencing reasons for Michael Mathieson after convictions for kidnapping, unlawful confinement and robberies arising from a violent Kamloops motel and home invasion.
The court accepted a joint sentencing submission after a guilty plea to robbery and use of an imitation firearm, imposing 13 months’ custody, probation, a firearm ban, and a DNA order.
Plea to the imitation firearm count was uninformed because trial counsel did not advise the appellant of that charge or its mandatory one-year minimum; independently, counsel’s performance was unreasonable (failed to review disclosure, assess identification and Charter issues, and obtain instructions), producing prejudice such that all guilty pleas were set aside and a new trial ordered.
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Although the trial judge mischaracterized the basis of liability as s.21(2), the evidence demonstrated the conduct and fault necessary for aiding and abetting under ss.21(1)(b) and 21(1)(c); an appellate court may affirm a conviction on that correct basis where the evidence supports it and the appellant is not prejudiced.
Source excerpt
The court accepted the joint recommendation under the public interest test, found the proposed sentence within range and not contrary to public interest, applied enhanced remand credit (477 days remand credited as approximately 715 days at 1.5:1), imposed a go-forward sentence of 1 year for robbery plus 1 year consecutive for the s.85 firearms offence (total two years), concurrent short terms on breach and possession counts, ordered forfeiture of seized items, made a DNA order and imposed a lifetime s.109 firearms prohibition, and dismissed specified counts where Crown offered no evidence.
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