[R. v. Dean], 2011 NSPC 40

PROVINCIAL COURT OF NOVA SCOTIA Citation: [R. v. Dean], 2011 NSPC40 Date: 20110705 Docket: 2248070, 2265145, 2267370 2274081, 2274082, 2282155 Registry: Pictou Between: Her Majesty the Queen v. Colin Anthony Dean SENTENCING DECISION Judge: The Honourable Judge Del W.

Atwood Heard: July 5, 2011, in Pictou, Nova Scotia Written decision: July 6, 2011 Charge: Breach of Probation, contrary to s. 733.1(1)CC Breach of Probation, contrary to s. 733.1CC Breach of Probation, contrary to s. 733.1CC Breach of Probation, contrary to s. 733.1CC Possession of cannabis, contrary to s. 4(1)CDSA Breach of Probation, contrary to s. 733.1(1)CC Counsel: Mr. Patrick Young, for the Nova Scotia Public Prosecution Service Mr. Doug Lloy for Colin Anthony Dean By the Court :

[ 1 ] Okay, thank you very much, Mr. Dean. The Court has for sentencing Colin Anthony Dean. Mr. Dean has pleaded guilty to four counts of breach of probation and has been found guilty of one count of breach of probation. He has also pleaded guilty to one count of possession of a controlled substance. [ 2 ] The Court has reviewed the presentence report prepared by Mr. Neilson May 18, 2011. The report refers to Mr. Dean’s record in detail and I am satisfied that Mr. Dean’s record does disclose a significant history of failing to comply with probation orders. The report also reports Mr.

Dean as expressing the view that he does not believe that he has a difficulty with alcohol. [ 3 ] The Court convened a sentencing hearing yesterday in relation to the matter of R. v. MacDonald, JEIN case 2296906 . In that particular case, the Court exercised it’s discretion in favour of the imposition of a conditional sentence order.

The Court was satisfied, in that particular case, that the offender had true and authentic insight into the manner in which her consumption of alcohol was bringing her into conflict with the law; the offender in that case had, as well, maintained significant periods of sobriety and had taken positive steps to seek a cure from alcohol addition. [ 4 ] In this particular case, the Court is satisfied that Mr. Dean violated, over the course of October through to February of 2011, violated two court orders, two probation orders that were clearly oriented to keeping Mr.

Dean away from alcohol. [ 5 ] I am satisfied that the sentencing judges who dealt with Mr. Dean in February of 2010 and November of 2009 would have been satisfied, based on the facts that I have heard in relation to Mr. Dean’s conduct and based on what I’ve read in the presentence report, that Mr. Dean has a significant difficulty with alcohol that has a definite impact on public safety. Mr.

Dean’s drinking requires ongoing police intervention; it results in disturbances in public places in the vicinity of residential neighbourhoods in the central part of the east side of New Glasgow. [ 6 ] The Court would observe that breaches of probation are serious offences in that when the court places individuals on probation, it does not send those probationers home with police officers or probation officers to superintend their conduct 24 hours a day, 7 days a week.

The Court must rely on probationers complying with the conditions of probation, and, when those conditions are breached, particularly in the repetitive and flagrant fashion as demonstrated by Mr. Dean’s conduct, it is important that the Court place significant emphasis on principles of denunciation and deterrence. [ 7 ] The Court would observe that Mr. Dean has been on remand for 145 days and the Court does intend to give Mr.

Dean credit for that remand time. [ 8 ] The Court observes that these matters were prosecuted summarily, with the exception of the 733.1 offence from February 11 th and the 733.1 offence from December 26 th ; however, even when prosecuted summarily, breach of probation carries a maximum potential penalty of 18- months’ incarceration, and, in the Court’s view, that reflects a determination of Parliament that probation orders be complied with. [ 9 ] Accordingly, the Court is of the view that a significant sentence is warranted here notwithstanding the period of remand credit.

The Court adopts the analytical framework that is binding upon this Court in virtue of R. v. Adams 2010 NSCA 42 a 2010 as recently re-enunciated in R. v. Naugle , 2011 NSCA 33 .

Accordingly, what I intend to do is make a preliminary determination of sentence and then make an adjustment with respect to the application of the principle of totality; a further adjustment will be made prior to the final pronouncement of sentence with respect to a credit for remand time. [ 10 ] In relation to case #2248070, which is the first count of breach of probation, the Court is of the view that a sentence of 180 days would be warranted. In relation to case #2265145, which is the breach of probation from November 27, 2010, the Court is of the view that a sentence of 180 days would be warranted.

In relation to the case from December 3, 2010, the breach from that date, case #2267370, cognizant of the fact that that offence occurred after Mr. Dean had been arrested in relation to the first two offences, the Court

is of the view that a sentence of 240 days would be warranted. In relation to the breach charge from the 26 th of December of 2010, the Court is of the view that a further sentence of 240 days would be warranted, that is case #2274081. In relation to the accompanying possession of cannabis charge, #2274082, the Court is of the view that a sentence of 90 days would be appropriate, however, that would be concurrent.

And finally, in relation to case #2282155, which is the breach of probation from February 11 th , the Court is of the view that a further sentence of 240 days would be appropriate. [ 11 ] Obviously, ordered served consecutively–with the exception of the CDSA charge– that would result in a sentence of 36 months, which would be excessive in the circumstances. The Court is required to apply the principles of totality, as set out in s. 718.2 (

c) of the Criminal Code and therefore, pursuant to R. v. Adams the Court will make the following adjustment: In relation to case #2248070, the Court would impose a sentence of 150 days. In relation to case #2265145, 150 days consecutive. In relation to case #2267370, 200 days consecutive. In relation to case #2274081, 200 days consecutive. In relation to case #2274082, 90 days concurrent; and in relation to case #2282155, 200 days consecutive. [ 12 ] Giving Mr.

Dean credit for the 145 days on a one-per -one basis, which the Court is satisfied the Court is required to apply in accordance with the Truth In Sentencing Act , the Court reaches the final calculation with regard to sentence as follows: What the Court will do is deduct 29 days for each of the major five offences before the Court. So, in relation to case #2248070, the final sentence of the Court is 121 days. In relation to case #2265145, the sentence of the Court is 121 days consecutive. In relation to case #2267370, the sentence of the Court is 171 days consecutive.

In relation to case #2274081, the sentence of the Court is 171 days consecutive. In relation to case #2274082, the sentence of the Court is 90 days concurrent; and in relation to case #2282155, the sentence of the Court is 171 days consecutive, for a total sentence of 755 days . [ 13 ] The Court is of the view that a

section 110 order is not required given the circumstances of offences before the Court. Furthermore, given the overall duration of the offences imposed by the Court, the Court is of the view that the imposition of victim surcharge amounts would work an undue hardship on Mr. Dean and therefore victim surcharge amounts will not be imposed. [ 14 ] As the sentence of the Court exceeds two years, it is not permissible for the Court to order a period of probation and the total sentence of the Court, as indicated, is 755 days . _______________________________________ JUDGE DEL W. ATWOOD, A PROVINCIAL COURT JUDGE FOR THE PROVINCE OF NOVA SCOTIA