Winnipeg Free Press - PRINT EDITION

Serial burglar handed a big break by judge

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He's a serial break-and-enter artist who was denied a shot at bail because of his criminal past -- a development that should have blocked him from having extra time slashed from his sentence.

But a Manitoba provincial court judge has granted Gordon Kovich a major break and lopped several extra months off the period he'll now have to serve behind bars.

Kovich was handed two years in prison this week after pleading guilty to 15 break and enters taking place between late 2010 and 2012.

The crimes, committed to fuel the 23-year-old's addiction to OxyContin, occasionally involved him hiding inside department stores until they closed so he could steal from them.

But instead of allowing Kovich only the routine remand-time credit of one day for each he's spent in jail awaiting the outcome of his case, provincial court Judge Mary Kate Harvie ordered he receive extra credit.

Her ruling resulted in 19 months of his so-called "dead time" treated as though he had served just shy of 24.

Earlier this year, Harvie had struck down in Kovich's case a February 2010 amendment to Canada's Criminal Code prohibiting offenders like him from obtaining "enhanced credit" for their remand time. The law was changed as part of the federal government's Truth in Sentencing Act.

Sec. 719 (3.1) of the Criminal Code mandates offenders who are denied bail because of their criminal records -- as Kovich was -- aren't entitled to even ask for enhanced credit of up to 1.5 days to one when they're sentenced.

That's unfair and creates a kind of "double jeopardy" for some criminals, Harvie ruled in Kovich's case.

The new law creates "gross disproportionality" between individual offenders at sentencing because those who are denied bail can wind up spending "significantly" more time in jail than others, and that's against the principles of fundamental justice, Harvie said in her decision.

"The denial of an accused bail 'primarily because of a previous conviction' impacts directly on the discretion afforded a sentencing judge when considering an application for enhanced credit for time spent in custody," Harvie said.

"The principles of sentencing are well recognized and do not include a consideration of an offender's bail status. The practical application of this provision means an offender's criminal record acts as a form of double jeopardy, and precludes an appropriate assessment of (pre-sentence custody)," she wrote.

james.turner@freepress.mb.ca

Republished from the Winnipeg Free Press print edition January 17, 2014 B3

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