R. v. Pelley, 2015 NSPC 30

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Pelley , 2015 NSPC 30 Date: 2015-05-26 Docket: 2771920, 2771921 Registry: Pictou Between: Her Majesty the Queen v. Floyd Archibald Pelley SENTENCING DECISION Judge: The Honourable Judge Del Atwood Heard: May 26, 2015, in Pictou, Nova Scotia Decision May 26, 2015 Charge: Section 253(1) (

b) Criminal Code Section 259(4) (

a) Criminal Code Counsel: Jody McNeill, for the Nova Scotia Public Prosecution Service Douglas Lloy, Q.C., Nova Scotia Legal Aid, for Floyd Archibald Pelley By the Court: [ 1 ] The court has for sentencing Floyd Archibald Pelley. Mr. Pelley elected trial in this court and pleaded guilty to two indictable counts, one, a charge of 253(1)(b), and the other, a charge under

Section 259 under the Criminal Code . [ 2 ] The maximum potential penalty for the 253(1)(

b) offence, where it has proceeded indictably, is imprisonment for a term not exceeding five (5) years. The maximum potential penalty for an indictable 259(4) is a term not exceeding five (5) years. Defence counsel seeks a curative discharge. The prosecution urges the court to consider a sentence in the range of two to two-and-a-half years’ federal imprisonment, given Mr. Pelley’s very significant record for similar offences. [ 3 ] The mitigating factor in this particular case is Mr. Pelley’s guilty plea, which the court treats as an authentic expression of Mr. Pelley’s remorse.

Having said that, the court certainly recognizes that the body of evidence arrayed against Mr. Pelley in relation to these charges was substantial. I treat as a mitigating factor as well the fact that Mr. Pelley has sought out and obtained appropriate addictions counselling from Ms. Mugridge. I understand that Mr. Pelley has been meeting with Ms. Mugridge intermittently since January of this year, and according to Ms. Mugridge’s evidence, her last meeting with Mr. Pelley was on 1 April 2015. [ 4 ] I heard today Mr. Pelley’s testimony regarding his commitment to sobriety. I believe that Mr.

Pelley thinks now that he has it within him to keep sober. But, what the court found particularly disconcerting, first of all, was Mr. Pelley’s utterance to the author of the pre-sentence report update that he did not realize that his drinking was such a problem. Also disconcerting was the fact that Mr. Pelley perceives the counselling that he is receiving now as essentially the same routine he went through in the past, noteably, while serving his federal term of incarceration back in 2010, and when previously on probation. [ 5 ] Alarmingly, Mr.

Pelley has six (6) prior findings of guilt for 253(b)-related offences, as well as three (3) prior findings of guilt for driving while prohibited, and one prior finding of guilt for dangerous operation of a motor vehicle. [ 6 ] The court has reviewed, in detail, exhibits that were filed with the court only today. That would be Ms. Mugridge’s reports of 16 January 2015; 27 February 2015, and 22 May 2015.

[ 7 ] I am certainly satisfied that Ms. Mugridge was qualified appropriately as an expert in the field of clinical therapy. I have reviewed Ms. Mugridge’s curriculum vitae which is before the court as Exhibit #4. Furthermore, I accept the proposition that Mr. Pelley has been committed to a certain degree to attending sessions with Ms. Mugridge for the purposes of identifying triggering events that might cause him to breach his sobriety and consume alcohol. [ 8 ] I note, however, that in Mr. Pelley’s narrative today, he describes what one would interpret as being ongoing sessions with Ms.

Mugridge, but my understanding from Ms. Mugridge’s evidence was that her last session with Mr. Pelley was on 1 April, a little over a month and a half ago. [ 9 ] I was informed by Mr. Pelley, when he testified under oath, that he is attending sessions in Dartmouth on Thursdays from 4 o’clock until 5:30. I note in Ms. Mugridge’s letter of January 16 th , 2015, Ms. Mugridge refers to Mr. Pelley being enrolled in two (2) programs with the Dartmouth Community Health Team. As well, Ms.

Mugridge’s letter of February 27 th , 2015, refers to that same program, the Dartmouth Community Health Team, Living with Stress, Building Better Sleep, Introduction to Assertiveness and Coping with Anxiety. And, Ms. Mugridge reconfirms Mr. Pelley’s attendance at these sessions in her report of 27 May. However, the court has been presented with no information as to Mr. Pelley’s level of participation in that programming in Dartmouth or the risk factors which that programming attempted to identify. All I know is that he attended these sessions.

I have not been told what good they did. [ 10 ] The court recognizes that, in dealing with an application for a curative discharge, it would not always be contrary to the public interest to grant a discharge under Section 255(5) of the Criminal Code , even when dealing with someone who has an extensive record as does Mr. Pelley. As Campbell J.P.C. ( as he then was) stated in R. v. Pearson 2010 NSPC 14 at para. 26 , public protection might well be served by effective measures to reduce the risk of repetition of drinking and driving offences through the rehabilitation of the offender.

But, it is also clear to the court that it would be contrary to the public interest to grant a discharge if there were a real risk for the repetition of the offence. [ 11 ] The burden of proof in relation to a curative discharge as upon Mr. Pelley. The standard of proof is a balance of probabilities. I take into account Mr. Pelley’s record, the number of occasions in the past that Mr. Pelley has received appropriate counselling, and has nevertheless relapsed. I recognize, as well, that this was a serious offence that involved Mr.

Pelley operating a motor vehicle while prohibited, with a very high blood-alcohol concentration in his body. The presumptive reading in this case—160 milligrams percent—is almost into the 255.1 range. There was a real risk to the public here; Mr. Pelley actually put his vehicle off the road in conditions that were not particularly challenging for a normal motorist, suggesting to me that there was certainly a degree of erratic driving. [ 12 ] Given the number of prior convictions, six prior convictions for 253(

b) or (1)(

b) offences, one prior conviction for dangerous driving and three prior convictions for drive while prohibited, I find that it would be contrary to the public interest to grant a curative discharge in this case. Because of that prior record, because of the dearth of evidence before me regarding the entire scope of Mr. Pelley’s counselling, and because of the fact that Mr. Pelley himself really doesn’t see his sessions with Ms. Mugridge as being very much different to what he’s done before, in my view, the risk to the public of relapse is simply too substantial to allow Mr.

Pelley to be discharged curatively. [ 13 ] Therefore, the sentence of the court will be as follows: • In relation to the 253(1)(

b) offence, the court is going to impose a fine of $50. There will be a $15-victim surcharge amount. Mr. Pelley will have 36 months to pay that amount. And, the court sentences Mr. Pelley to a period of 24 months in custody to be served in a Federal institution. • In relation to the

Section 259 offence involving prohibited operation of a motor vehicle, given that this involves a separate and distinct criminal intent; that is, operating a motor vehicle while Mr. Pelley was well aware of the fact that he was prohibited, the court imposes a sentence of 60 days imprisonment to be served consecutively to the first count. There will similarly be a $50 fine and a $15-victim surcharge amount. And, Mr. Pelley will have 36 months to pay those fines and victim surcharge amounts. • In relation to the Section 253(1) (

b) offence, the court prohibits Mr. Pelley from operating a motor vehicle on any street, road, highway or other public place for a period of ten (10) years plus 24 months and 60 days. • And in relation to the 259(1) count, the court orders a prohibition of five (5) years to run consecutively to the first order of prohibition in accordance with the provisions of Section 259(3.1) of the Criminal Code . [ 14 ] Anything further in relation to Mr. Pelley, counsel? [ 15 ] Mr. Lloy : Not by defence, Your Honour. [ 16 ] Mr. McNeill : No, Your Honour. [ 17 ] The Court : Thank you. Mr. Pelley, I’ll have you go with the sheriffs, please, sir. Thank you very much. JPC