R. v. Lush, 2018 NLSC 165

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Lush , 2018 NLSC 165 Date : August 8, 2018 Docket : 201701G2591 Her Majesty The Queen v. William Lush Before: Justice William H. Goodridge On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, R. v. Lush , 2017 0115A0210 dated the 31st day of March, 2017. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 5, 2018

Summary: The appeal was allowed. The sentence proposed in the joint submission was imposed, but a stay was entered on the additional portion of the custodial sentence not already served. Appearances: Jude W. Hall Appearing on behalf of the Crown Derek J. Hogan Appearing on behalf of the Accused

Authorities Cited: CASES CONSIDERED: R. v. Lacasse , 2015 SCC 64 ; R. v. Anthony-Cook , 2016 SCC 43 ; R. v. Glasco (2009), CarswellNfld 24, [2009] N.J. No. 19, (Prov. Ct.), 2009 CarswellNfld 24 (Prov. Ct.) ; R. v. Symes , [2017] N.J. No. 53, 139 W.C.B. (2d) 413 (Nfld. Prov. Ct.) ; R. v. Sutherland (2014), 352 Nfld. & P.E.I.R. 276, 1997 A.P.R. 276 (Nfld. Prov. Ct.) ; R. v. Rumsey (2015), 362 Nfld. & P.E.I.R. 297, 1125 A.P.R. 297 (N.L. Prov. Ct.) ; R. v. Oxford, 2010 NLCA 45 ; R. v. Taylor , 2013 NLCA 42 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT (Amended August 21, 2018) [1] Goodridge, J. : INTRODUCTION [ 1 ] The Crown appeals a sentencing decision. The sentencing Judge rejected a joint submission on sentence and substituted a less severe sentence. The Crown argues that the sentencing Judge erred in law by rejecting the joint submission. [ 2 ] The Offender pleaded guilty and was convicted under the Criminal Code, R.S.C. 1985, c.

C-46, for seven charges of theft under $5,000 ( s. 334 (b)(ii)), one charge of attempted theft ( s.334 (b)(ii)), three charges of driving while prohibited ( s. 259(4) (b)), and one charge of failure to attend court ( s. 145(2) ). He had a significant, but dated, criminal record. Crown and Defence counsel made a joint sentencing submission for twenty months custody, eighteen months probation, and a five-year driving prohibition. The sentencing Judge rejected the joint submission on the basis that it was excessive.

After hearing the further submissions the Judge substituted the sentence jointly recommended by counsel for a sentence of eight months custody, eight months probation, and a four-year driving prohibition. issues [ 3 ] The issue is whether the sentencing Judge erred in law in rejecting the joint submission. STANDARD OF REVIEW [ 4 ] There is a right of appeal of a sentencing decision on

summary convictions pursuant to s. 813 (b)(ii) of the Criminal Code . The standard of appellate review on sentencing matters is set out in ss. 822(1) and 867(1) of the Criminal Code . If this Court finds errors in law then it has the authority to rectify the errors pursuant to s. 687(1) of the Code . [ 5 ] The Supreme Court of Canada has recently discussed the standard of appellate review in R. v. Lacasse , 2015 SCC 64 at paragraph 36 : 36 Appellate courts generally play a dual role in ensuring the consistency, stability and permanence of the case law in both the criminal and civil law contexts.

First, they act as a safeguard against errors made by trial courts and are thus required to rectify errors of law and review the reasonableness of the exercise of discretion.

They must ensure that trial courts state the law correctly and apply it uniformly. [ 6 ] In Lacasse , Wagner, J. stated at paragraph 11 that “except where a sentencing judge makes an error of law or an error in principle that has impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.” At paragraph 44 Wagner, J. stated that “an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify that appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence.” background [ 7 ] The joint submission in this matter was the result of a plea deal.

In the quid pro quo , the Crown agreed to drop 17 other criminal charges and accept guilty pleas on the remaining 12 charges. The breakdown of the individual sentences in the joint submission is as follows: ⋅ Driving While Prohibited – July 21, 2015 – 120 days consecutive ⋅ Theft Under $5,000 – January 8, 2016 – 60 days consecutive ⋅ Theft Under $5,000 – July, 2016 – 60 days consecutive

⋅ Attempt Theft Under $5,000 – July 17, 2016 – 60 days concurrent ⋅ Driving While Prohibited – July 18, 2016 – 120 days consecutive ⋅ Failure to Attend Court – August 29, 2016 – 60 days concurrent ⋅ Theft Under $5,000 – September 8, 2016 – 60 days consecutive ⋅ Theft Under $5,000 – October 19, 2016 – 60 days consecutive ⋅ Driving While Prohibited – October 26, 2016 – 120 days consecutive ⋅ Theft Under $5,000 - October 26, 2016 – 60 days concurrent ⋅ Theft Under $5,000 - October 26, 2016 – 60 days concurrent ⋅ Theft Under $5,000 – November 6, 2016 – 60 days concurrent Total = 600 days (20 months) [ 8 ] The sentencing Judge determined that the proposed sentence for the 12 charges was “crushing” and would bring the administration of justice into disrepute, and be contrary to the public interest.

She varied the individual sentences and allowed concurrency on two of the driving while prohibited charges, as follows: ⋅ Driving While Prohibited – July 21, 2015 – 120 days consecutive ⋅ Theft Under $5,000 – January 8, 2016 – 10 days consecutive ⋅ Theft Under $5,000 – July, 2016 – 20 days consecutive ⋅ Attempt Theft Under $5,000 – July 17, 2016 – 25 days concurrent ⋅ Driving While Prohibited – July 18, 2016 – 120 days concurrent ⋅ Failure to Attend Court – August 29, 2016 – 15 days concurrent ⋅ Theft Under $5,000 – September 8, 2016 – 50 days consecutive ⋅ Theft Under $5,000 – October 19, 2016 – 30 days consecutive ⋅ Driving While Prohibited – October 26, 2016 – 120 days concurrent ⋅ Theft Under $5,000 - October 26, 2016 – 30 days concurrent ⋅ Theft Under $5,000 - October 26, 2016 – 30 days concurrent ⋅ Theft Under $5,000 – November 6, 2016 – 30 days concurrent Total = 230 days (approx. 8 months) [ 9 ] Paragraphs 59, 81, 82, 83, 86, 95 and 100 of the Judge’s sentencing decision reveal the rationale behind her reduction of the sentence: [59] … the joint submission put forward is a crushing one and that it fails the public interest test as it would bring the administration of justice into disrepute or otherwise be contrary to the public interest and it is my intention to depart from it. [81] In this case, the proposed sentence of twenty months is over three times the length of Mr.

Lush’s longest previous period of incarceration which was six months in 2009. Since that sentence was completed, Mr. Lush got married, moved to Newfoundland and Labrador and started a family. He also worked on a fulltime basis and committed no criminal offences except for the driving while prohibited conviction in 2014. [82] It was not until he lost his job and fell on difficult financial times that he began to steal again and he has indicated that he will accept any work offered to him in order to support his family.

His rehabilitation is tied directly to him being able to secure employment and return to care for his young family. The longer he remains in prison, the more difficult finding work and reintegrating into society will become and this would be contrary to the public interest. [83] Given the eight year gap between his last convictions for theft, the unsophisticated nature of the shopliftings and the absence of any aggravating factors, I am satisfied that the appropriate sentences on the theft charges are … 7.5 months.

[86] Because his last conviction on this charge was 11 years ago, I find that 15 days is a suitable sentence for the failing to attend court charge. [95] In looking at all of the factors in this case, including the above-cited case law, I am satisfied that the 120 days or 4 months proposed by counsel on the s. 259(4) charges [driving while disqualified] is within the range and is reasonable.

As a result, I am satisfied that 120 days should be the sentence on each conviction for driving while prohibited. [100] … I find that the three driving while prohibited charges should be served consecutively to the 110 days in relation to the theft and failing to attend court charges, but concurrent to each other for a total global sentence of 230 days or approximately eight months. THE LAW [ 10 ] Pursuant to R. v. Anthony-Cook , 2016 SCC 43 , a judge may not depart from a joint submission unless the sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

At paragraph 34 of Anthony-Cook Moldaver, J. indicates that there is a high threshold for rejection of a joint submission: 34 … Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty and resolution discussions to believe that the proper functioning of the justice system had broken down.

This is an undeniably high threshold – and for good reason…” [ 11 ] A judge may not interfere with a joint submission merely because he or she has a different view of a fit sentence for the crimes. Allowing this latitude would effectively eliminate the use of plea-bargaining, which is an important component of the criminal prosecution process.

As stated at paragraph 25 of Anthony-Cook, plea bargaining is vitally important to the well-being of our criminal justice system, as well as our justice system at large. analysis [ 12 ] The sentencing Judge agreed that the total sentence proposed in the joint submission was within the range of comparable cases but felt that it was at the very top of the range (paragraph 42). [ 13 ] Regarding the three “driving while prohibited” offences, the Judge agreed that 120 days each was reasonable but imposed concurrency even though the offences were separate criminal adventures spaced over 15-months. [ 14 ] Regarding the “theft under” and “attempted theft” offences, the Judge disagreed with 60 days each and substituted lesser sentences varying from 10 to 50 days, mostly based on the value of the stolen goods.

At paragraph 79 of her reasons, discussing the theft charges, the Judge quotes with approval and reliance from the sentencing decision of Orr, J. in R. v. Glasco (2009), CarswellNfld 24, [2009] N.J. No. 19, (Prov. Ct.) . That case involved 11 charges of “theft under.” The values of goods stolen were, in several instances, not large and for the most part were similar in nature to the goods stolen by Mr. Lush. Orr, J. sentenced the offender in Glasco to six months on each of the 11 thefts.

Allowing concurrent terms to achieve a proper totality, he arrived at a sentence of 24 months. [ 15 ] Also under discussion of the appropriate sentences for the “theft under,” the sentencing Judge referred to R. v. Symes , [2017] N.J. No. 53, 139 W.C.B. (2d) 413 (Nfld. Prov. Ct.) , where an offender was sentenced to 10 days for theft of a chocolate bar; R. v. Sutherland (2014), 352 Nfld. & P.E.I.R. 276, 1997 A.P.R. 276 (Nfld. Prov. Ct.) , where the offender was sentenced to 60 days for theft of a pair of binoculars; and R. v. Rumsey (2015), 362 Nfld. & P.E.I.R. 297, 1125 A.P.R. 297 (N.L. Prov.

Ct.) , where the offender was sentenced to 90 days on each of the five “theft under” charges, all to be served consecutively. [ 16 ] The sentences proposed for Mr. Lush in the joint submission for the “theft under” offences are in line with the sentences imposed in Glasco , Sutherland , and Rumsey . [ 17 ] Regarding the “failure to attend court” offence, the Judge disagreed with 60 days and substituted the lesser sentence of 15 days.

At paragraph 86 she stated: “b ecause his last conviction on this charge was 11 years ago, I find that 15 days is a suitable sentence.” No authorities were cited in support of the lesser sentence. In R. v. Oxford , 2010 NLCA 45 , discussing a sentence for breach of probation and breach of undertaking, the court stated that “sentences of two months … would not be contrary to the public interest or threaten the repute of the administration of justice.” In my view the same logic extends to a “failure to attend court” offence. The two months (60 days) suggested in the joint submission for Mr.

Lush’s “failure to attend court” is not contrary to the public interest and would not threaten the repute of the administration of justice. [ 18 ] The sentencing Judge agreed that the total sentence was within the range of comparable cases. That finding, on its own, signals that the sentencing judge should not interfere with the sentence proposed in the joint submission.

If the total sentence is within the range of comparable cases, then it is not unhinged from the circumstances of the offence and the offender; and its acceptance would not lead reasonable persons to believe that the proper functioning of the justice system has broken down. [ 19 ] As Moldaver, J. stated at paragraph 34 of Anthony-Cook , there is an undeniably high threshold before a sentencing judge may reject a joint submission. That threshold is not met here.

That is perhaps most obvious for the “theft under” offences where the cases cited by the sentencing Judge are in line with the sentence proposed in the joint submission and are not in line with the sentences that she substituted.

DISPOSITION [ 20 ] The sentencing Judge made an error in law by misapprehending the principles outlined in Anthony-Cook when she rejected the joint sentencing submission and substituted a less severe sentence. [ 21 ] The victim fine surcharge of the sentencing Judge is confirmed. The remainder of the Order of the sentencing Judge is reversed and in its place the jointly recommended sentence is imposed.

In addition to the 20-month custodial sentence outlined in paragraph 7 above, the joint submission included an 18- month period of supervised probation (usual statutory terms) and three 5-year driving prohibitions consecutive to any current driving prohibitions, but concurrent to one another. [ 22 ] Remand credit discussed by the sentencing Judge at paragraph 101 of her reasons applies, as per her calculations. ADDENDUM [ 23 ] Defence counsel requested that the Mr. Lush not be required to serve the balance of the 20-month custodial sentence imposed above at paragraph 21.

Crown counsel does not oppose this request. Sixteen months have elapsed since the custodial sentence imposed at the original trial was completed; rehabilitation is well underway; re-incarceration (to make an example of Mr. Lush) is counter- productive; rehabilitation can best protect the public. [ 24 ] In R. v. Taylor , 2013 NLCA 42 , at paragraph 61 , White, J.A., for the majority, stated: 61 … the decision to re-incarcerate an offender [upon having a sentence increased on appeal] may have a cost to society in that the person's rehabilitative prospects may be lost.

In such cases, a judge may ask whether advancement of the objectives of denunciation and deterrence as well as the principle of parity are of greater benefit to society, in the circumstances of the particular case, than the cost of the possible loss of the offender's rehabilitation, bearing in mind that one sentencing objective does not trump another and that the objectives of denunciation and deterrence can sometimes be achieved otherwise than by incarceration. [ 25 ] Although I have concluded that the sentencing Judge erred in rejecting the joint submission, and that the custodial sentence should be 20-months, I find that the interests of justice do not justify re-incarcerating Mr.

Lush. Balancing the purposes and principles of sentencing, I impose a stay on the additional portion of the custodial sentence not already served. At paragraph 69 of Taylor the stay was identified as an option in this type situation. _____________________________ William H. Goodridge Justice