2011 NBCA 23, 2011 NBCA 23

COURT OF APPEAL OF NEW BRUNSWICK 146-10-CA JARED GRANT SACOBIE APPELLANT JARED GRANT SACOBIE APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Sacobie v. R., 2011 NBCA 23 Sacobie c.

R., 2011 NBCA 23 CORAM: The Honourable Justice Turnbull The Honourable Justice Deschênes The Honourable Justice Green CORAM : L’honorable juge Turnbull L’honorable juge Deschênes L’honorable juge Green Appeal from a decision of the Provincial Court: October 12, 2010 Appel d’une décision de la Cour provinciale : Le 12 octobre 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: February 15, 2011 Appel entendu : Le 15 février 2011 Judgment rendered: March 24, 2011 Jugement rendu : Le 24 mars 2011 Reasons for judgment by: The Honourable Justice Deschênes Motifs de jugement : L’honorable juge Deschênes

Concurred in by: The Honourable Justice Turnbull The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Turnbull L’honorable juge Green Counsel at hearing: For the appellant: Sylvain Pelletier For the respondent: Cameron H. Gunn Avocats à l’audience : Pour l’appelant : Sylvain Pelletier Pour l’intimée : Cameron H. Gunn THE COURT Leave to appeal is granted and the appeal is dismissed. LA COUR L’autorisation d’appel est accordée et l’appel est rejeté. The judgment of the Court was delivered by DESCHÊNES, J.A. [ 1 ] As a result of a plea negotiation, the appellant pled guilty to mischief ( s. 430(4) (

a) of the Criminal Code ), breach of probation ( s. 733.1(1) ( a )) and break, enter and theft ( s. 348(1) ( b )). The Crown withdrew a charge of attempted robbery. [ 2 ] Before imposing sentence, the sentencing judge was provided with the Crown’s version of events. The Court was informed that the appellant had attended a party the night before the incident where he had befriended the victim. The next day, the appellant went to the victim’s apartment, knocked on the door and called out the victim’s name. The latter opened the door and was confronted with the appellant holding a steak knife in full view.

The victim backed away and the appellant entered the apartment and threatened to harm the victim if the latter did not attend a bank nearby and use his debit card to extract all his money and hand it over to him. The victim informed the appellant that he did not hold such a card, but then decided it would be wise to at least appear to agree with the appellant’s demand. As soon as they exited the apartment, however, the victim bolted and fled the scene. The appellant followed him out of the apartment but was not successful in stopping the victim’s flight.

The appellant then re-entered the victim’s apartment and stole several items which were found shortly thereafter in a car in which he was a passenger. [ 3 ] The appellant admitted being unlawfully in the victim’s apartment and stealing several items after the latter had fled the scene, but did not agree with the Crown’s version of events in two important respects. First, he denied ever having been in possession of a knife.

In addition, he refused to admit he had threatened to harm the victim at any point in time. [ 4 ] After considering the submissions of both counsel, the comments of the appellant and the several pre- sentence reports filed with the Court, the sentencing judge accepted the version of events as recited by the Crown and sentenced the appellant to a period of 18 months of imprisonment: 17 months for the break, enter and theft and one month for mischief.

She also issued a probation order for a period of 24 months, compelling the appellant to enroll in a program to address his addiction to alcohol upon his release from custody. [ 5 ] The appellant seeks leave to appeal and maintains that the sentencing judge erred in law: (1) by taking into account disputed aggravating facts relevant to the determination of the sentence without the prosecution having established their existence beyond a reasonable doubt as required by s. 724(3) (

e) of the Criminal Code ; (2) by failing to properly take into account the

appellant’s Aboriginal heritage as required by s. 718.2(

e) of the Criminal Code; and (3) by failing to properly consider whether aconditional sentence would be consistent with the fundamental purposes and principles of sentencing, particularly with s. 718.2(e). [6] The record before us is simply incompatible with the appellant’s contentions that the sentencing judge failedto take the appellant’s Aboriginal heritage into account, or that she failed to properly consider resorting to a conditional sentence.

In fact,the record indicates the sentencing judge was quite alive to the importance of the appellant’s Aboriginal heritage and discussed at lengththe implications of R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19 (QL) and s. 718.2(e). She alsoconsidered at length the question of whether a conditional sentence would be appropriate.

She concluded that, in view of the appellant’sextensive criminal record, including a prior conditional sentence which was eventually suspended because the appellant had breached itsconditions on two occasions, the appellant would not be amenable to supervision and would endanger the safety of the community byserving another conditional sentence.

I agree with her conclusion. [7] The Crown, however, readily agreed with the appellant’s contention that the sentencing judge had erred inlaw in taking into account two disputed aggravating factors in imposing sentence without going through the process envisaged by s.724(3)(e). The Crown contends, however, that despite such error, the sentence imposed is fit for the alleged offences if one accepts themost favorable version of events as put forth by the appellant.

In my view, the appellant’s history of committing serious offences and hisrepeated failure to take advantage of the rehabilitative opportunities accompanying the lighter sentences he received, affirm the Crown’sassertion that the sentences imposed in this instance were appropriate and do not call for appellate intervention despite the error of law. [8] I would therefore grant leave to appeal but dismiss the appeal. ____________________________________ ALEXANDRE DESCHÊNES, J.A. WE CONCUR: __________________________________ WALLACE S. TURNBULL, J.A. ___________________________________ BRADLEY V. GREEN, J.A.