A Brandon man accused of stealing from a local Dolarama and kicking the employee who was recording him was sentenced to 16 months in prison after a judge found him not guilty of robbery and found him guilty of assault.
“In my opinion, this case was very close … I could almost as easily have written a strong, reasoned decision in support of the robbery conviction,” Judge Shauna Hewitt-Michta said Tuesday.
“Obviously, I don't do that because the bit of doubt that does exist here should benefit the defendant.”
Shawn Lepine, 27, appeared on robbery charges in Brandon provincial court last week.
During the trial, a Dollarama employee testified that on March 16, he saw a man putting unpaid items into his backpack. Shortly after, when he saw the man getting ready to leave the store, he said he asked him if he was going to pay, to which the man replied, “No.”
The employee called 911 and another employee working the register began recording the man. He told the court the man turned around, threw the cashier to the ground and walked away.
A customer who saw part of the argument said she heard a noise in front of the store and decided to check it out. She heard talk of a man stealing and saw the man hit an employee.
The police officer who arrived to help also took a position. She said the cashier showed her a video of the man, and even though the lower part of his face was covered, she knew it was Lepine.
She said she was sure it was him because she had interacted with him a lot during her seven years with the Brandon Police Service.
On the same day she arrested Lepine.
During his testimony, Lepine admitted to kicking the employee and said he did it because he was furious that he had been recorded. He repeatedly denied stealing anything.
Hewitt-Michta, reading her decision, said Lepine's testimony was “so grossly unreliable and self-serving that it does not even come close to raising a reasonable doubt.”
She noted that in a recorded statement to police, Lepine initially denied any involvement in the incident, but after being shown a video of him kicking an employee, he admitted it was him in the video but justified the punch, saying the cashier had invaded his privacy.
“The shift from denial to partial confession, driven by evidence rather than frankness, undermined his credibility and the reliability of his testimony,” Hewitt-Michta said.
On the other hand, she said the other three witnesses were credible and believable.
Hewitt-Michta said the issue is whether the Crown proved beyond a reasonable doubt that Lepine committed the theft and whether there was a sufficient connection between the theft and the assault to obtain a robbery conviction.
“The crime of robbery requires proof of theft, that is, theft, violence or threats of violence, and that it be used for the purpose of extorting stolen goods or to prevent or overcome resistance to theft.”
She said the Crown “easily” proved the theft, but determining whether the facts were consistent with robbery was difficult.
Although the theft and assault occurred close in time, and Hewitt-Michta said she supported the conclusion that Lepine attacked the cashier to increase his chances of successfully escaping, she did not find the Crown had proven beyond a reasonable doubt that this was the case.
“While this is not the strongest finding available, the evidence supports a possible finding of a discrete retaliatory attack that is not sufficient to support a robbery conviction.”
Lawyers began arguing for an appropriate sentence, with the Crown proposing 18 months in custody and the defense proposing 11 to 12 months.
Crown attorney Rich Lonstrup said that while Lepine was not found guilty of robbery, he nonetheless “had no right to kick an officer who had every right to try to gather evidence.”
He said violence, whether it involves theft or not, must be curbed.
“He did it much worse than if he had simply dropped objects or slipped away. He unreasonably took advantage of an obvious means of escape to strike,” Lonstrup said.
Defense lawyer Jennifer Janssens argued that the blow was at the lower end of the scale of violence and injury that “can be caused as a result of such crimes.”
She said kicking the employee out was impulsive and a bad decision.
During his time in custody, which is the equivalent of 14 months, Lepine worked on skills “to deal with similar angry or emotional impulses in the future,” Janssens said.
She said he also attended Alcoholics Anonymous meetings.
Janssens said that because of his rehabilitation efforts while in custody, Lepine should receive the least restrictive sentence.
Hewitt-Michta told LePine that she hoped he took time to think about his actions and that he felt bad about them.
“This is a serious incident. I don't care whether you call it robbery or assault, I have sentenced you today for your behavior,” she said.
Lepine's sentence will be followed by 18 months of unsupervised probation.
