• Lewis Waring

Considerations in Sentencing - Sierra Bednarz

Once an offender has pled guilty or been convicted, a court is charged with implementing a reasonable and fit sentence. This is no easy task for the justice system, as it consists of balancing a number of different sentencing guidelines and principles set out in the Criminal Code [“the Code”]. Ultimately, the severity of the sentence imposed by the justice system is often reflective of society’s view of a particular crime. As such, “sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.” While the judiciary has considerable discretion on what that sentence should be, it is integral that similar sentences be imposed for similar crimes. Additionally, a fit sentence must be proportionate to the seriousness of the offence and the offender’s degree of responsibility.

On one hand, the objectives of sentencing include the denouncement of unlawful conduct, deterrence, and the separation of the offender from society, all of which are intended to prevent crime. The incarceration of offenders ensures that they are incapable of committing crimes, and the threat of punishment is intended to make people think twice about offending in the first place. On the other hand, a fit sentence should also provide reparations for harm done to the victim and the community, enable offender rehabilitation, and encourage offenders to take responsibility for their actions. These objectives are more rehabilitative in nature, focused on helping offenders learn from their mistakes and address the harm that they have caused. In practice, these objectives can be contradictory and often require certain objectives to be prioritized depending on the situation. In cases of violent criminals who are likely to reoffend, a court is more likely to prioritize the objectives of incapacitation and denouncement over those of rehabilitation and restitution. In addition to all above sentencing objectives, an offender’s sentence may be reduced or increased in response to any mitigating or aggravating factors.

It is evident from the number of sentencing guidelines and objectives that the implementation of a fit sentence is a challenging pursuit. Acourt must consider the severity of the offence committed, the circumstances surrounding its commission, and the individual offender themselves.

A seemingly unmotivated attack

In the Manitoba Court of Appeal’s (“the MBCA”) 2020 decision of R v Kravchenko (“Kravchenko”), the accused had committed an entirely unprovoked assault on a stranger with no motive or explanation. The accused in Kravchenko was not a career criminal nor was his offence premeditated. The accused’s actions were violent, unpredictable, and nearly resulted in the death of his young victim. This made the accused’s actions all the more concerning and difficult to comprehend.

On a Sunday morning in 2017, Mr. Kravchenko attended a church service in Winkler, Manitoba with a folding knife in his pocket. After the service was over, he went into the women’s washroom and found the victim, a 15-year-old girl, washing her hands. Kravchenko pulled out the knife and stabbed the victim in the back; when she turned around, he stabbed her once again in the abdomen. The victim, who had to be airlifted to Winnipeg for surgery, suffered serious internal injuries and a laceration on her arm from the attack. As a result of Mr. Kravchenko’s actions, she suffers from severe emotional distress and had to relearn how to walk.

The accused left the church and sat in a car until he was arrested with the bloodied knife in his possession. Mr. Kravchenko confessed to the crime but maintained that he did not target the victim and that his actions were unplanned and spontaneous. While there is no explanation for the accused’s actions, it is clear that it had had a profound psychological impact on the victim as well as the other churchgoers who witnessed the attack.

During his childhood, Kravchenko experienced both physical and sexual abuse, and his parents were both alcoholics. Despite this, he was believed to be capable of living pro-socially. Kravchenko was a permanent resident, worked in construction, and had a criminal record limited to a conviction of assault from a domestic incident in 2014. In Kravchenko, no evidence existed to suggest that he suffered from any serious psychiatric illness or cognitive limitations. However, the accused was said to be “dangerously isolated”, with few friends and estranged from his wife, daughter, and the remainder of his family in the Ukraine. Additionally, there were barriers in Mr. Kravchenko’s ability to receive any programming or counselling as he spoke limited English. According to the psychiatric report, it is possible that the offence occurred “during a ‘major depressive episode’ that was the ‘culmination of months of negative feelings which were finally released’”.

An unusually severe punishment at trial is overturned

The accused pled guilty to aggravated assault contrary to section 268(1) of the Code, an offence with a maximum penalty of 14 years’ imprisonment. The defence requested a sentence of four years in custody for the accused and the Crown recommended a sentence of six years. However, the trial judge in Kravchenko concluded that “given the accused’s lack of explanation for a ‘very serious aggravated assault’, his moral culpability was ‘very high.’” As such, Mr. Kravchenko was sentenced to a term of imprisonment of ten years, a term that departed quite extensively from the recommendations provided by counsel.

The MBCA turned to an assessment of the case law to determine whether the sentence imposed upon Mr. Kravchenko was reasonable under the circumstances. The MBCA found that “[t]he sentencing range for cases involving aggravated assault where there is an unprovoked random attack on a stranger with a weapon and significant resulting consequences is a term of imprisonment of between four and eight years.” This is a clear discrepancy from the trial court’s sentence of 10 years.

The aggravating factors in Kravchenko were clear: the accused committed a serious assault against a vulnerable and young victim who suffered serious physical and psychological consequences. As a result, the accused’s crime warranted “a sentence near or at the top of the range”. However, there were also mitigating factors that needed to be considered in Kravchenko. The accused had a limited criminal record, and, as a result of his offence, it is likely that he will face deportation under the Immigration and Refugee Protection. Therefore, the MBCA concluded that the ten-year sentence imposed by the trial judge was “demonstrably unfit” under the circumstances. As such, Mr. Kravchenko’s sentence was reduced to eight years imprisonment, which was at the top of the sentencing range identified by the MBCA.

A properly appealed sentence

It is undeniable that the crime committed in Kravchenko was a terrible one, leaving devastating impacts on the victim and many others in the community. As such, the sentencing objectives prioritized in Kravchenko were those of denouncement, deterrence, and incapacitation. Given the violent nature of the offence and the vulnerability of the victim, Mr. Kravchenko deserved to be sentenced to a significant term of imprisonment. However, the MBCA also believed that the accused would be faced with a removal order as a result of his conviction. This order would be a serious consequence to the offender’s actions in and of itself. As such, I agree that it would be excessive to impose a sentence of ten years, a sentence above those ordered in similar cases. Therefore, I agree with the MBCA’s decision to reduce Mr. Kravchenko’s sentence from ten to eight years imprisonment.

While the offence committed by the accused in Kravchenko was serious, there is nothing to suggest that his actions were markedly different from the case law to justify a materially longer sentence. In R v Khan [“Khan”], the accused was sentenced to eight years after attacking a stranger with a knife in a subway station, which resulted in serious injury to the victim’s face. The crimes committed in Khan and Kravchenko are similar in nature and severity; they both attacked strangers with a weapon without motive or explanation and caused their victims serious injury. I think that, above all else, the justice system should strive for proportionality and consistency in sentencing. I do not believe that the actions of Mr. Kravchenko were so abhorrent as to deserve being singled out in such a manner. A sentence of ten years’ imprisonment is a significantly longer sentence than the sentences imposed on offenders who committed strikingly similar offences. As such, a sentence of eight years’ imprisonment is consistent with the case law and is an appropriate sentence under the circumstances.

Check out the Robson Crim MLJ
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