R. v. Power, 2017 NLCA 66

Irving William Power (appellant) v. Her Majesty the Queen (respondent) (16/121) Indexed As: R. v. Power 2017 NLCA 66 2 C.A.N.L.R. 323 Court of Appeal of Newfoundland and Labrador Welsh, Harrington and O’Brien JJ.A. November 10, 2017

Summary: Mr. Power pleaded guilty to two counts of break and enter into cabins and theft contrary to section 348(1) (

b) of the Criminal Cod e. He was sentenced to nine months imprisonment for each offence to be served consecutively and his sentence for the second offence was reduced to three months imprisonment to be served consecutively for a total of twelve months, for reasons of totality. He sought leave to appeal his sentence on the grounds that he was a single father who was attempting to regain custody of his two children, who were in foster care. Held: Application dismissed. Welsh J.A. (Harrington and O’Brien JJ.A concurring): Leave to appeal was required by section 675(1) (

b) of the Criminal Code because this is an appeal as to sentence only. The test to be applied is whether the appeal is frivolous in the sense of having no arguable basis or sufficient merit. The sentencing judge was aware of Mr. Power’s concern regarding his children. However, the judge determined that a period of imprisonment was necessary. He identified an appropriate range of sentence and correctly applied the analytical approach to reducing the term of imprisonment for reasons of totality. The panel was satisfied that the appeal had no arguable basis or sufficient merit.

Accordingly, leave to appeal was denied. Cases cited: R. v. Hillier , 2016 NLCA 21 , 377 Nfld. & P.E.I.R. 121 R. v. Hutchings , 2012 NLCA 2 , 316 Nfld. & P.E.I.R. 211 Counsel: No appearance, for the appellant; Lisa Stead, for the respondent. This appeal was heard on November 10, 2017 before Welsh, Harrington and O’Brien JJ.A. and the decision was rendered orally on that date. The following Memorandum of Disposition was filed on November 10, 2017 by Welsh J.A. for the Court. ______________________________________________________________

Welsh J.A. [ 1 ] Mr. Power pleaded guilty to two counts of break and enter and theft contrary to section 348(1) (

b) of the Criminal Code . Both offences involved breaking into cabins. The first break in occurred between January 23 and 24, 2016, and the second between February 3 and 5, 2016. Mr. Power was sentenced to nine months imprisonment for each offence to be served consecutively. For reasons of totality, the sentence for the second offence was reduced to three months imprisonment to be served consecutively for a total of twelve months. [ 2 ] Mr.

Power sought to appeal his sentence on the basis that the sentencing judge failed to consider that he was a single father who was attempting to regain custody of his two children, who were in foster care. [ 3 ] At the hearing, Mr. Power was denied leave to appeal his sentence. Leave to appeal was required because this is an appeal by Mr. Power as to sentence only ( section 675(1) (

b) of the Criminal 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. Hillier , 2016 NLCA 21 , 377 Nfld. & P.E.I.R. 121 , at paragraph 7 ). Mr. Power’s appeal did not meet this threshold requirement. [ 4 ] The sentencing judge was, in fact, aware of Mr. Power’s concern regarding his children. Both Mr. Power and his lawyer drew the relevant circumstances to the judge’s attention. However, the judge determined that a period of imprisonment was necessary.

In his oral decision, the judge emphasized the sentencing principles of general and specific deterrence. He particularly referred to the point that a cabin is “really an extension of a person’s primary residence” and that cabins, an easy target for break and enters, present difficulties for law enforcement because of their relative isolation. I note as well that Mr. Power has a criminal record. [ 5 ] The judge identified an appropriate range of sentence, concluding that a sentence of nine months imprisonment for each offence would be consistent with sentences imposed in similar circumstances.

He correctly applied the analytical approach set out in R. v. Hutchings , 2012 NLCA 2 , 316 Nfld. & P.E.I.R. 211 , reducing the term of imprisonment for reasons of totality. [ 6 ] The panel was satisfied that the appeal had no arguable basis or sufficient merit. Accordingly, leave to appeal was denied. Application dismissed .