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SENTENCING - Criminal Code offences - Robbery with prohibited firearm - Particular sanctions - Imprisonment - Sentencing considerations - Maximum or minimum sentence available - Seriousness of offence

Tuesday, April 24, 2018 @ 8:37 AM  

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Appeal by McIvor from the five-year jail sentence imposed on him following his conviction for robbery with a prohibited firearm. McIvor pleaded guilty to this offence and three other weapons offences arising from an incident in which McIvor and another male stole a bicycle from a youth and continued to harass him before Brooks intervened. During the ensuing confrontation, the youth ran away and McIvor pointed a sawed-off rifle at Brooks and demanded Brooks’ property. When Brooks produced a bottle with which to defend himself, McIvor and his companion backed down and left the area. The offence of robbery with a prohibited weapon pursuant to s. 344(1)(a)(i) of the Criminal Code bore a minimum sentence of five years’ imprisonment. McIvor argued at sentencing that a two-year sentence for his offence would be appropriate, and that the mandatory minimum was grossly disproportionate given that only a difference of four inches in length made his rifle a prohibited, rather than a non-prohibited, firearm. The Crown sought a sentence of between four and six years’ imprisonment. The judge found that a sentence of between three-and-one-half and four years’ imprisonment would be appropriate; as such, a five-year sentence was not grossly disproportionate. She went on to find that the mandatory minimum would not capture conduct that would result in the application of a grossly disproportionate sentence for other offenders.

HELD: Appeal dismissed. The judge did not err in finding that the minimum sentence was not grossly disproportionate as it applied to McIvor or in reasonably foreseeable circumstances. The judge’s finding with respect to the appropriate sentencing range for McIvor, absent the mandatory minimum, was at the low end of the appropriate range. The judge considered the relevant factors, including the gravity of the offence, the circumstances of the offender and the offence, the effect of the punishment on McIvor, whether the punishment was necessary, whether alternatives to the punishment existed, and the sentences imposed for other crimes in the same jurisdiction. The use of a prohibited weapon, like a sawed-off rifle that could be more easily concealed due to its size, made McIvor’s offence more serious than other armed robberies and warranted an increase from the four-year mandatory minimum sentence for robbery with a firearm. McIvor failed to identify a hypothetical case supporting his position that the mandatory five-year minimum for robbery with a prohibited firearm would be grossly disproportionate. Parliament had a clear intention to discourage the use of firearms for criminal purposes through the imposition of mandatory minimum punishments, and to treat robberies committed with firearms more harshly than such crimes were treated prior to the implementation of the mandatory minimums.

R. v. McIvor, [2018] M.J. No. 66, Manitoba Court of Appeal, R.J.F. Chartier C.J.M., H.C. Beard and J. leMaistre JJ.A., March 23, 2018. Digest No. TLD-April232018004