Heg dweh haghe

A Brandon man accused of stealing from a local Dollarama and kicking an employee who was recording him was sentenced to 16 months in jail after the judge found him not guilty of robbery and convicted him of assault.

“In my view, this case was a very close call … I could almost as easily written a solid, defensible decision in support of a robbery conviction,” Judge Shauna Hewitt-Michta said on Tuesday.

“Obviously, I’m not doing that because the scrap of doubt that does exist here must accrue to the accused’s benefit.”

Sean Lepine, 27, stood trial on the robbery charge in Brandon provincial court last week.

During the trial, a Dollarama employee testified that he saw a man putting unpaid items in his backpack on March 16. Shortly after, when he saw the man was about to leave the store, he said he asked him if he was going to pay, to which the man responded, “No.”

The employee called 911 and another employee, who was working the till, started recording the man. He told the court that the man turned around, kicked the cashier and left.

A customer who saw part of the altercation testified that she heard a commotion at the front of the store and decided to check it out. She heard some talk about the man stealing and saw the man kick the employee.

The responding police officer also took the stand. She said the cashier showed her the video of the man, and despite the bottom of his face being covered, she knew it was Lepine because she had many interactions with him over her seven years with the Brandon Police Service. She arrested Lepine that same day.

During his testimony, Lepine admitted he kicked the employee and said he did it because he was mad about being recorded. He repeatedly denied stealing anything.

Hewitt-Michta, while reading her decision, said Lepine’s evidence was “so wildly unreliable and self-serving that it is nowhere near capable of inspiring a reasonable doubt.”

She pointed out that in a recorded statement to police, Lepine initially denied any involvement in the incident, but after being shown the video of him kicking the employee, he admitted it was him in the video, but justified the kick by saying the cashier invaded his privacy.

“The shift from denial to partial admission driven by evidence rather than candour wounded his credibility and the reliability of his evidence,” Hewitt-Michta said.

On the other hand, she said the other three witnesses were credible and believable.

Hewitt-Michta said the issue was whether the Crown proved beyond a reasonable doubt that Lepine committed a theft and whether there was a sufficient nexus between the theft and the assault to find a conviction of robbery.

“The offence of robbery requires proof of stealing, so a theft, violence or threats of violence, and that they be used for the purpose of extorting whatever is stolen or to prevent or overcome resistance to stealing.”

She said the Crown “easily” proved a theft, but determining whether the facts added up to a robbery was a close call. While the theft and assault happened close in time, and Hewitt-Michta said she favoured the inference that Lepine attacked the cashier to increase his chances of successfully escaping, she didn’t find the Crown proved it beyond a reasonable doubt.

“Although it is not the most persuasive of the available inferences, the evidence does support a possible finding of discrete retaliatory assault, which is insufficient to ground a conviction for robbery.”

The lawyers proceeded to argue for the appropriate sentence, with the Crown suggesting 18 months of custody and the defence suggesting 11 to 12 months.

Crown attorney Rich Lonstrup said even though Lepine wasn’t convicted of robbery, he nonetheless “had no business kicking the employee who had every right to try and collect evidence.”

He said the violence, whether accompanied by a theft or not, needed to be deterred. “He has made it far worse than if he had simply dropped the items or slipped away. He gratuitously came from what was a clear exit way to deliver the kick,” Lonstrup said.

Hewitt-Michta told Lepine she hoped he had taken time to reflect on his actions and that he felt bad about them.

“This is a serious incident. I don’t care whether you call it a robbery or an assault, I’ve sentenced you today for the way that you behaved,” she said.

Lepine’s sentence will be followed by 18 months of unsupervised probation.

sanderson@brandonsun.com