R. v. Starkes, 2019 NLCA 4

John Starkes (applicant/appellant) v. Her Majesty the Queen (respondent) (18/71) Indexed As: R. v. Starkes 2019 NLCA 4 4 C.A.N.L.R. 34 Court of Appeal of Newfoundland and Labrador Welsh J.A. January 22, 2019

Summary: The appellant applied for the appointment of counsel for his appeal of a 24-month sentence for several offences. Held: Application dismissed. Welsh J.A.: The appeal is not frivolous. The appellant does not have the means to engage counsel. However, the Court will be able to properly decide the case without the appointment of counsel to assist the appellant. The issues are not legally complex, there is relevant case law to provide guidance to the Court for purposes of the appeal, the appeal is narrow in scope, and there is a comprehensive sentencing decision by the trial judge. Cases cited: R. v.

White , 2011 NLCA 14 , 305 Nfld. & P.E.I.R. 262 Counsel: No one appearing for the applicant/appellant; Lisa Stead, for the respondent; and David Rodgers, for the Attorney General. This application was heard on January 22, 2019 and decision rendered orally by Welsh J.A. The following written reasons were filed on January 22, 2019 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] John Starkes applies under

section 684 of the Criminal Code for the appointment of counsel to assist him in the conduct of his appeal against sentence. [ 2 ] By way of background, on July 19, 2018, Mr. Starkes pleaded guilty to and was convicted of several charges: break and enter into a dwelling house and committing an assault therein; uttering threats; and unlawful storage of a firearm. He was sentenced to a total of twenty-four months imprisonment less 419 days for pre-sentence custody. He seeks to appeal the sentence and requires leave of the Court for that purpose.

[ 3 ] The test to be applied in assessing an application under

section 684 is set out in R. v. White , 2011 NLCA 14 , 305 Nfld. & P.E.I.R. 262 : [ 4 ] To justify the appointment of counsel under s. 684 the Court should generally be satisfied that: (

i) the applicant does not have the financial resources to engage private counsel; (ii) the applicant has been denied, or would not qualify for, legal aid; (iii) there are serious (i.e. not frivolous) issues to be dealt with on the appeal; and (iv) the applicant will not be able adequately to present his own case on the appeal or the Court will not be able properly to decide the case without the assistance of counsel … . [4] In Mr. Starkes’ case, I am satisfied that he does not have the financial resources to engage private counsel. He is sixty-one years of age and unemployed.

On November 2, 2018, he was refused the assistance of legal aid based on their assessment of the appeal, and not for financial reasons. [ 5 ] While I would not characterize the appeal as frivolous, I am satisfied that the Court will be able to properly decide the case without the appointment of counsel to assist Mr. Starkes in the conduct of his appeal. The issues are not legally complex, there is relevant case law to provide guidance to the Court for purposes of the appeal, the appeal is narrow in scope, and there is a comprehensive sentencing decision by the trial judge. [ 6 ] Accordingly, Mr.

Starkes’ application for the appointment of counsel to assist him in the conduct of his appeal is dismissed. Application dismissed.