R. v. Tuglavina, 2020 NLCA 30

Her Majesty the Queen (appellant) v. Lane Tuglavina (respondent) (18/103) Indexed As: R. v. Tuglavina 2020 NLCA 30 6 C.A.N.L.R. 3 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Green and Goodridge JJ.A. September 9, 2020

Summary: On March 10, 2017 the respondent struck two pedestrians while operating a snowmobile (alcohol was a factor). The respondent plead guilty to two counts of dangerous operation of a motor vehicle causing bodily harm (249(3) of the Criminal Code of Canada ) and breach of probation order (733.1 of the Code ) for the events on March 10, 2017; and two breaches of an undertaking not to consume alcohol (145(3) of the Code ) in relation to incidents on June 26, 2017 and March 12, 2018.

The respondent received a 10-month conditional sentence (249(3) of the Code ), 30 days concurrent (733.1 of the Code ), and nine days time served, concurrent for each breach of undertaking (145(3) of the Code ). The sentencing judge also ordered 12 months probation, a two-year driving prohibition, and a victim fine surcharge of $600. The Crown sought leave to appeal the sentences imposed for the offences of dangerous operation of a motor vehicle and breach of the probation order. Held: Leave to appeal granted and appeal allowed.

Fry C.J.N.L. (Green and Goodridge JJ.A. concurring): The issues on appeal are: (1) was the conditional sentence improper and not permitted under the Criminal Code ; (2) if so, what is an appropriate sentence; and (3) should the sentence for the breach of probation be served consecutively rather than concurrently (paragraphs 6-11)? Leave to appeal was granted on the basis that the appeal raises a question of law (paragraphs 12-13). A conditional sentence under

section 742.1 (e)(

i) of the Criminal Code was not available to the sentencing judge. Accordingly, the sentence must be varied (paragraphs 14-16). The objectives of denunciation and deterrence were balanced against mitigating circumstances, including the respondent’s demonstration of remorse and accountability; rehabilitation prospects; an absence of continuing injuries to the complainants; and the aboriginal status of the respondent (paragraphs 17-36).

The sentencing judge erred in principle by failing to provide reasons for departing from the generally accepted principle of imposing consecutive sentences for breach of probation (paragraphs 37-40). It was appropriate to credit time served under the conditional sentence on a 1:1 ratio with the four-month custodial sentence (paragraphs 41-49). The ten month conditional sentence was varied and a four month custodial sentence imposed for the breach of section 249(3) of the Code , with a consecutive 30-day sentence for the breach of

section 733.1 (paragraph 50).

Cases cited: R. v. Blok-Andersen, 2016 NLCA 9, 376 Nfld. & P.E.I.R. 130 R. v. O’Keefe, 2011 NLCA 41, 309 Nfld. & P.E.I.R. 253 R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 R. v. Shinkel, 2015 YKCA 2 R. v. Hamm, 2019 NSPC 23 R. v. Charlie, 2019 YKTC 32 R. v. Power, 2011 NLCA 68 R. v. McCowan, 2010 MBCA 45 R. v. Martin, 2012 QCCA 2223 R. v. Butler, 2008 NSCA 102 R. v. Hutchings, 2012 NLCA 2 R. v. Kasprow, 2010 ABCA 315 R. v. F (G.C.), (ON CA), [2004] 71 O.R. (3d) 771 (Ont. C.A.) R. v. Taylor, 2013 NLCA 42 Statutes considered: Criminal Code, sections 145(3), 249(3), 676(1)(d), 718.2(e), 733.1, 742.1(e)(

i) Rules considered: Criminal Appeal Rules, SI/2002-96,

section 24.2 Texts considered: Clayton C. Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008) Counsel: Arnold Hussey Q.C., for the appellant; Karen Rehner, for the respondent. The appeal was heard on June 16, 2020 before Fry C.J.N.L., Green and Goodridge JJ.A. The following judgment was filed on September 9, 2020 by Fry C.J.N.L. for the Court. ______________________________________________________________ Fry C.J.N.L.: [1] The Crown seeks leave to appeal and if granted, appeals the conditional sentence imposed with respect to the breach of section249(3) (since repealed and replaced) of the Criminal Code of Canada because it was a sentence not authorized by the Code. The

respondent acknowledges that the Code does not permit the imposition of a conditional sentence in the circumstances of this matter. Both parties seek to have the conditional sentence varied but differ as to what the resulting sentence should be. The Crown also appeals the sentence imposed for the

section 733.1 breach of probation order. BACKGROUND [ 2 ] On March 10, 2017, the respondent struck two pedestrians while operating a snowmobile. Both pedestrians suffered injuries as a result of the collision. Alcohol was determined to be a factor by the police who responded to the accident. [ 3 ] The respondent pleaded guilty to two counts of dangerous operation of a motor vehicle causing bodily harm contrary to section 249(3) of the Code and a breach of a probation order contrary to

section 733.1 of the Code . The respondent also pleaded guilty to two breaches of an undertaking not to consume alcohol contrary to section 145(3) of the Code in relation to two separate incidents on June 26, 2017 and March 12, 2018. [ 4 ] The Crown sought a period of six months’ incarceration for the section 249(3) offence, 30 days consecutive with respect to the breach of probation, and 14 days incarceration for each of the alcohol breaches. The Crown also sought a period of probation of 12 months and a two-year driving prohibition.

The respondent sought a conditional sentence. [ 5 ] On November 1, 2018, t he sentencing judge imposed a 10-month conditional sentence for the section 249(3) offence; 30 days concurrent for the

section 733.1 breach of probation; nine days’ time served for each of the breaches of undertaking, with the nine days to be concurrent one with the other; 12 months’ probation; a two-year driving prohibition; and a victim fine surcharge of $600. ISSUES [ 6 ] The issues to be determined are whether to grant leave to appeal, and if granted, whether the conditional sentence imposed was improper and not permitted by the Code , and if so, what an appropriate sentence would be. The issue to be determined on the breach of probation order is whether the sentence imposed should have been consecutive rather than concurrent. PARTIES’ POSITIONS [ 7 ] The Crown submits that

section 742.1(e)(

i) of the Code permits a court to order a sentence to be served in the community “if the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is ten years, that resulted in bodily harm.” The Crown argues that, because the offence under section 249(3) of the Code is punishable by a maximum term of imprisonment of ten years, and the offence was prosecuted by way of indictment and it resulted in bodily harm, the sentence imposed was not a sentence permitted under the Code.

Further, the Crown notes that the possibility of a conditional sentence was not addressed by Crown counsel at the sentencing hearing. [ 8 ] The Crown asks this Court to vary the ten-month conditional sentence and to impose a custodial sentence of six months for the offence under section 249(3) and 30 days consecutive for the breach of

section 733.1. The Crown does not seek to disturb the sentence for the section 145(3) breaches, the probation order, driving prohibition, or victim fine surcharge. [ 9 ] The respondent acknowledges that the sentence imposed by the sentencing judge with respect to the breach of section 249(3) was not permitted by the Code and agrees that the sentence imposed with respect to this count should therefore be varied. The respondent argues that there was no error in the imposition of the concurrent sentence for the breach of

section 733.1 or the sentence imposed for breaches of section 145(3). [ 10 ] The respondent also made an unopposed application to introduce evidence of his circumstances subsequent to the imposition of the original sentence. The evidence sought to be introduced was provided by sworn affidavits with no request by the Crown to cross- examine the affiants. Rule 24(2) of this Court’s Criminal Appeal Rules pertains. [ 11 ] The affidavit evidence established that the respondent completed the conditional portion of his sentence on September 1, 2019 and is currently on probation.

He has been compliant with the terms of the conditional sentence and probation. He has actively engaged in recommended rehabilitative programming. He has not been charged or convicted of any criminal offences during this period. The respondent continues to work and financially support his family. ANALYSIS Leave to Appeal [ 12 ] Leave to appeal is required because this is an appeal by the Crown as to sentence only (section 676(1)(

d) of the Code ). The test to be applied is whether the appeal is frivolous in the sense of having no arguable basis or sufficient merit ( R. v. Blok- Andersen , 2016 NLCA 9 , 376 Nfld. & P.E.I.R. 130 , at paragraph 8 ). [ 13 ] The imposition of a sentence not authorized by the Code raises a question of law and meets the requirement that the appeal is not frivolous or without merit. Accordingly, I would grant leave to appeal. Was a Conditional Sentence Available? [ 14 ] The parties agree that the conditional sentence imposed by the sentencing judge was not an option available in the circumstances presented, as it does not fall within the scope of

section 742.1(e)(

i) of the Code . Having examined the record, I conclude that this is a correct assessment and that a conditional sentence was not available to the sentencing judge. Furthermore, the sentencing judge stated that the “Crown has no issue with the fact that a conditional sentence here is available.” A review of the transcript reveals no reference

by the Crown to a conditional sentence. [15] Having reached this conclusion, it is clear that the conditional sentence imposed must varied to one within the limits prescribedby law. [16] Section 687(1)(

a) of the Code sets out: 687(1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitnessof the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, (

a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; … Sentence for the section 249(3) offence [17] In a review of relevant case law, the Crown relies on this Court’s decision in R. v. O’Keefe, 2011 NLCA 41, 309 Nfld. & P.E.I.R.253, where the Court observed that there was a developing trend towards the imposition of periods of incarceration for driving offencesresulting in bodily harm: [57] … The trend emanates from the decision of the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61.

Therean eighteen year old expectant father with no record of previous offences pleaded guilty to dangerous driving causing death anddangerous driving causing bodily harm. … [18] In O’Keefe, this Court determined that the current statutory framework was consistent with the trial judge’s conclusion that theprinciples of deterrence and denunciation can be linked to the serious bodily harm suffered by the two pedestrians. The trial judge’sconclusion that neither an intermittent custodial sentence nor a conditional sentence was warranted was upheld by this Court.

The Courtconcluded that there was no error by the trial judge in focusing on denunciation and general deterrence as primary factors in sentencingthe appellant to two concurrent terms of six months of institutional incarceration. [19] The respondent submits that O’Keefe has a number of distinguishing factors and the sentence imposed on the respondent shouldbe lower by comparison. For example, there was no evidence before the Court in this case of continuing injuries to the complainants,whereas in O’Keefe the Court heard evidence of continuing physical and psychological effects from the incident.

The respondent in thismatter entered a guilty plea whereas in O’Keefe, the accused was convicted after trial. In O’Keefe, the Court noted at paragraph 53 that“the trial judge felt that the appellant may not have made an appropriate connection between his conduct and the serious consequencesthat affected the injured pedestrians”.

The respondent here appears to have been immediately remorseful for his actions and to haveinsight into the connection between those actions and the harm caused to his victims. [20] This Court is required to take note of the respondent’s status as an aboriginal offender, a factor not present in O’Keefe. The Codesets out principles that a court should consider in imposing a sentence including at

section 718.2(e): 718.2(

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [21] The two leading cases with respect to the application of this

section are the Supreme Court of Canada judgments in R. v. Ipeelee,2012 SCC 13, [2012] 1 S.C.R. 433 and R. v. Gladue, (SCC), [1999] 1 S.C.R. 688. In Ipeelee, LeBel J. for the majoritywrote: [72] … The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offenderwhich could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider: (1) the uniquesystemic and background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (2)the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or herparticular Aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and propersentence. [22] In Ipeelee the Court gave special consideration to the impact that these considerations may have on the application of the parityprinciple: [78] The interaction between s. 718.2(

e) and 718.2(b) — the parity principle — merits specific attention.

Section 718.2(

b) states that "asentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". … [79] In practice, similarity is a matter of degree. No two offenders will come before the courts with the same background andexperiences, having committed the same crime in the exact same circumstances.

Section 718.2(

b) simply requires that any disparitybetween sanctions for different offenders be justified. To the extent that Gladue will lead to different sanctions for Aboriginal offenders,those sanctions will be justified based on their unique circumstances — circumstances which are rationally related to the sentencingprocess. … [23] At the sentencing hearing, the judge referenced the pre-sentence report which described the displacement of the respondent’sfamily from their home in Hebron and that the respondent grew up in a home where alcohol use and abuse was a regular occurrence.

Therespondent admitted that a contributing factor to this offence was his own alcoholism. The respondent submits that these circumstancesaffect his moral culpability for the offence. [24] While primary consideration in sentencing for dangerous driving offences is given to deterrence and denunciation, therespondent submits his unique circumstances increase the importance of rehabilitation as a sentencing factor in his case. At the time ofhis sentencing, the respondent had stopped drinking. He submits that his access to supports in his community that would allow him to

maintain his sobriety are key to his continued rehabilitation and to the long-term protection of his community. [ 25 ] In consideration of 718.2(

e) and the principles articulated in Gladue and Ipeelee , the respondent provided three cases where lower periods of incarceration, suspended sentences or intermittent sentences of incarceration had been imposed on similar offenders for similar offences. [ 26 ] All three cases involved aboriginal offenders, where the offenders pleaded guilty to dangerous driving causing bodily harm, among other charges, and the sentencing courts applied the Gladue and Ipeelee principles. [ 27 ] In R v.

Shinkel , 2015 YKCA 2 , the offender received an intermittent sentence of 60 days’ incarceration concurrent on each of the charges of impaired driving causing bodily harm, dangerous driving causing bodily harm and refusal to provide a breath sample. The sentencing judge gave considerable weight to the offender’s healing and rehabilitation. The Crown appeal was dismissed. [ 28 ] In R. v.

Hamm , 2019 NSPC 23 , the 20-year-old offender with no previous criminal record pleaded guilty to two counts of dangerous driving causing bodily harm and was sentenced to a 90-day period of custody to be served intermittently, three years’ probation and a five-year driving prohibition. The offender lost control of the vehicle while intoxicated and driving at a high rate of speed. One passenger suffered a dislocated shoulder, while the other passenger suffered a significant brain injury. The offender was remorseful and had taken steps to further his rehabilitation prior to sentencing. [ 29 ] In R. v.

Charlie , 2019 YKTC 32 , the offender pleaded guilty to a single count of dangerous driving causing bodily harm. She was given a suspended sentence of three years with restrictive probation conditions. The offender had consumed alcohol prior to driving with her three-year-old niece on an ATV. She drove at a high rate of speed, lost control of the ATV which overturned leaving the young child, who was knocked unconscious, with abrasions and soreness but no lasting injuries. The sentencing judge gave particular consideration to the Gladue factors as they related to the offender’s addiction problems.

The Court acknowledged the importance of denunciation and deterrence in sentencing for this type of offence, but held that in the circumstances of the offender a suspended sentence could have a sufficient deterrent effect to meet the principles of sentencing. [ 30 ] It is apparent from the case law that denunciation and deterrence remain important sentencing principles for dangerous driving convictions involving bodily harm. That said there are important Gladue and Ipeelee factors to be applied to the respondent’s circumstances.

Rehabilitative principles also attract significant consideration in the circumstances of this respondent. [ 31 ] Since a conditional sentence was not legally available for the section 249(3) offence, the respondent suggests that the conditional sentence should be varied to one of 60 days’ incarceration with credit for time served deducted on a one for one basis, which would result in a sentence of time served.

As noted previously the Crown seeks a sentence of six months’ incarceration, also acknowledging credit on a one for one basis resulting in a sentence of time served. [ 32 ] In determining a fit and proper sentence for the respondent, I note that unlike a number of cases, which provided for an intermittent or suspended sentence for aboriginal offenders, the respondent before us has a significant self-admitted history of alcohol abuse, and at 48 years of age is not a youthful offender. Neither is he a first-time offender.

The principles of denunciation and deterrence should attract a custodial sentence in the circumstances that are presented here. [ 33 ] In a sentence appeal, an appeal court can take account of any material events or changes in circumstances between the date of sentence and the appeal whether those changes are positive or negative. The weight given to any changes may vary depending on the circumstances. ( See R. v. Power , 2011 NLCA 68 ; R. v. McCowan , 2010 MBCA 45 ; R. v. Martin , 2012 QCCA 2223 ; R. v.

Butler , 2008 NSCA 102 ). [ 34 ] As previously noted there are a number of relevant factors that would warrant a shorter custodial sentence than sought by the Crown, including the Gladue factors. The respondent pleaded guilty, acknowledged his alcoholism, showed remorse, sought ways to apologize to the victims who fortunately recovered from their injuries, and sought and received addictions support.

Since sentencing, the evidence demonstrates that he has been compliant with the terms of the conditional sentence and probation, has actively engaged in recommended rehabilitative programming, and has not been charged or convicted of any criminal offences during this period. The respondent continues to work and financially support his family. [ 35 ] The length of time between sentencing on November 1, 2018 and the hearing of the appeal on June 16, 2020 is considerable. The fact that the respondent has sustained his rehabilitative efforts for more than 18 months adds weight to the consideration of this factor.

Sustaining positive changes over a shorter period may not be given as much weight as there would often be a tendency for an appellant “to behave in an exemplary fashion pending an appeal”. (See Clayton C. Ruby et al., Sentencing , 7th ed . (Markham: LexisNexis Canada Inc ., 2008) at 161, referred to at paragraph 24 of McCowan ) . [ 36 ] In all of the circumstances, I conclude that a custodial sentence of four months would meet the objectives of denunciation and deterrence.

Such a sentence would show this offender and others the importance of safe driving to ensuring community safety while also recognizing that the respondent has accepted responsibility for his behaviour and taken meaningful steps towards obtaining rehabilitative support. Sentence for the

section 733.1 offence [ 37 ] The sentencing judge also accepted the respondent’s guilty plea to a breach of probation and entered a conviction pursuant to

section 733.1 of the Code. The Crown appealed the 30-day sentence arguing that the sentencing judge erred in imposing this sentence to run concurrently rather than consecutively to the sentence for the section 249(3) breach. [ 38 ] This Court addressed sentencing principles to be applied in determining whether sentences should be consecutive or concurrent in R. v. Hutchings , 2012 NLCA 2 . In general, the principle is that consecutive sentences should be imposed unless there is a valid reason not to do so. With respect to breaches for probation orders, this Court stated:

[24] It is to be noted as well that Goodridge C.J. in Crocker stressed that where multiple offences arise out of a single criminaladventure, concurrent sentences “may, but are not required to be” imposed. There are exceptions. For example, this Court hasdetermined that breaches of court orders, such as probation orders, will generally result in a sentence to be served consecutively to asentence for the related offence that constitutes the breach: R. v. Murphy, 2011 NLCA 16 at para. 27; R. v. Hennebury (1996), (NL CA), 138 Nfld. & P.E.I.R. 56 (Nfld. C.A.) at para.7.

Failure on the part of a sentencing judge to advert to theserecognized exceptions and to consider their application will be regarded as an error in principle. [Emphasis added.] [39] The transcript of the sentencing hearing and decision does not reveal that the sentencing judge gave any consideration as towhether the 30-day sentence for the breach of probation should be concurrent or consecutive.

The sentencing judge simply stated “ …and the conditional sentence order is going to be on the 249 charge, and the breach of probation will be 30 days concurrent and that willbe included in the 10 months.” Neither the Crown nor the respondent made submissions on the issue. [40] Although an appellate court will not lightly interfere with a sentencing judge’s discretion, it may do so when a sentencing judgecommitted an error in principle, failed to consider a relevant factor, overemphasized the appropriate factors or imposed a demonstrablyunfit sentence (Hutchings, at para. 17).

To impose a concurrent sentence for a breach of probation without explanation as to why it wasappropriate in these circumstances and to depart from the generally accepted principle of imposing a consecutive sentence constitutes anerror. A review of the record does not provide any reason to depart from the imposition of a 30-day consecutive sentence for the section733.1 breach of probation conviction.

Accordingly, I would allow the Crown appeal in this regard. [41] There was no appeal taken from the custodial sentence for the breaches of section 145(3) nor from the period of probation, thedriving prohibition nor the victim fine surcharge ordered. Credit for Time Served [42] In imposing a custodial sentence of four months for the breach of section 249(3) and 30 days consecutive for the

section 733.1breach of probation, this Court must consider the granting of credit for the ten months the respondent served on the conditionalsentence. [43] Both the Crown and the respondent provided case law where appeal courts have given credit on a one for one basis for timealready served on a conditional sentence. [44] In R. v. Kasprow, 2010 ABCA 315, the Alberta Court of Appeal was presented with a similar situation to the one in this case. Thesentencing judge had sentenced the co-accused to 12-month conditional sentences of imprisonment followed by 12 months’ probation.

Aconditional sentence was not legally available under the Code and the appeal court was required to determine a fit sentence. In imposinga custodial sentence of 8 months, the Court credited the time already served under the conditional sentence on a one for one basis. [45] In R. v. F (G.C.), (ON CA), [2004] 71 O.R. (3d) 771 (Ont. C.A.), the Court determined that the 12-monthconditional sentence imposed on charges of sexual assault and sexual interference involving two 13-year-old girls was demonstrablyunfit and imposed a custodial sentence of two years less a day.

Borins J.A. stated as follows: [23] I will consider the question of credit or discount first. A survey of appellate court decisions in British Columbia, Alberta, NovaScotia and this province discloses that in every case where a conditional sentence order was set aside and a custodial sentence wasordered, the defendant received a discount, or credit, for the time spent serving the conditional sentence. For the most part, the credit wason a 1:1 basis for the portion of the conditional sentence served.

In some cases, depending on the circumstances, a greater or lesser credithas been given. … [46] Borins J.A. provided, as an appendix to his decision, a list of appellate decisions allowing a credit where a custodial sentence wassubstituted for a conditional sentence, the majority of which allowed a 1:1 credit. He went on to analyze the varying approaches takenby appellate courts contrasting two approaches in particular.

The Court of Appeal of Ontario has taken what Borins J.A. described as aflexible approach, where the Court, in considering all of the circumstances, most often gave credit on a one for one basis, butoccasionally gave credit on a basis more or less than one for one. [28] In contrast to what I would characterize as the flexible approach advocated by this court in MacLaren and Alfred in giving credit forthe service of all, or part, of a conditional sentence that has been served on substituting a custodial sentence, a more rigid approach wastaken by a majority of the British Columbia Court of Appeal in R. v.

Birchall (2001), 2001 BCCA 356 , 158 C.C.C. (3d) 340(B.C.C.A.). In that case, the defendant had served a 12-month conditional sentence at the time the Court of Appeal substituted themandatory four-year prison sentence that should have been imposed by the trial judge. At issue was the credit to be given for the 12-month conditional sentence. Lambert J.A. analyzed several sections of the Criminal Code and observed that on the language of s.742.1(

a) it is clear that a conditional sentence is a sentence, but one that is served in the community. Based on his analysis, he was of theview that in all cases the credit to be given for the service of a conditional sentence, in whole or in part, should be 1:1. He stated hisconclusion in para. 37: The time served under the conditional community custodial sentence, prior to the sentence being varied by this Court, is the preciseamount of time that may be deducted from the balance of the sentence to be served in prison. There is no statutory authority for allowingadditional time to be deducted.

The conditional custodial sentence that was served in the community is part of the sentence, and timeruns in its remorseless way at its constant speed for conditional and non-conditional sentences alike [emphasis added in original]. [47] Borins J.A. went on to say that while he preferred the flexible approach which allowed the Court to consider all relevant factors,his review demonstrated that in all cases where a conditional sentence was set aside and a custodial sentence was substituted “somecredit or discount was incorporated in the custodial sentence based on the length of the conditional sentence served at the time of theappeal.

Although, generally, the credit is expressed as a 1:1 ratio, there is no precise formula” (para. 29). The Court in R. v. F (G.C.)ultimately determined that there was no reason to depart from the one for one credit for the 12-month conditional sentence. However, the

Court had to go further to deal with the fact that the custodial sentence imposed was greater than the 12-month conditional sentence.

The Court went on to determine whether the sentence should be stayed on the grounds that to incarcerate the respondent eight months after completion of his conditional sentence would constitute hardship. [ 48 ] Application of the factors described in the case law supports credit for the 10 months served by the respondent under the conditional sentence being deducted on a one for one basis from the custodial sentence of four months and the 30 day consecutive sentence for the breach of probation.

Both the Crown and respondent agree and the Court sees no reason to depart from the generally accepted legal principles in this regard. The result is that given the application of the credit of time served under the conditional sentence, there is no time left to be served. [ 49 ] The issue of whether to grant a stay, ( considered by this Court in R. v. Taylor , 2013 NLCA 42 and discussed above in R. v. F (G.C.) ) where the initial sentence has been served and the new sentence is greater than the initial sentence and would result in incarceration, does not arise in the circumstances of this case.

DISPOSITION [ 50 ] In the result, I would grant leave to appeal the sentence and allow the appeal. I would vary the 10-month conditional sentence and impose a custodial sentence of four months for the breach of section 249(3) of the Code with a consecutive 30-day sentence for the breach of

section 733.1. There will be an adjustment credit of 10 months resulting in a sentence of time served. [ 51 ] There was no appeal taken with respect to the sentence for the breaches of section 145(3), the period of probation, the driving prohibition and the victim fine surcharge. Leave to appeal granted and appeal allowed.