R. v. Barrett, 2011 NLCA 5

Date: 20110107 Docket: 10/103 Citation: R. v. Barrett, 2011 NLCA 5

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : AUBREY WALLACE BARRETT APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Mercer, White and Hoegg, JJ.A. Court Appealed From: Provincial Court of Newfoundland & Labrador Clarenville, NL Appeal Heard: November 19, 2010 Judgment Rendered: January 7, 2011 Reasons for Judgment by Mercer and Hoegg, JJ.A. Concurred in by White, J.A.

Counsel for the Appellant: Michael Ralph Counsel for the Respondent: Elaine Reid Mercer, J.A. and Hoegg, J.A.: [ 1 ] This is an appeal against the sentencing judge’s rejection of a joint submission on sentence. BACKGROUND [ 2 ] On June 11, 2010 the Appellant pleaded guilty to three counts of sexual assault. The offences were committed against three different victims in the same residence on the same date, April 1st, 2010. One offence comprised non-consensual sexual intercourse with a seventeen year old and the two other offences consisted of assault by digital penetration of two fifteen year old victims.

All victims had been drinking alcohol supplied by the Appellant. [ 3 ] The Appellant had been in custody since April 23, 2010 in relation to the charges. He had one prior conviction in 2007 for fraud. PROCEEDINGS BELOW [ 4 ] Following entry of the guilty verdict Crown counsel advised that in consideration of the Appellant’s guilty plea counsel had arrived at a joint submission on sentence.

Because of the guilty plea and the lack of a related criminal record the Crown agreed upon a sentence of three years for the forcible sexual intercourse, being at the lower end of the accepted range of sentence for that offence. The other two assaults were not as grave, though with significant effect, and the Crown recommended a one year sentence in respect of each, both to run concurrently with the three year sentence. That was also stated to be in recognition of the guilty plea, the lack of a related criminal record and the totality of the sentence.

The Crown also noted to the court that the joint submission was arrived at by experienced counsel, and that other factors not before the court were taken into account. Defence counsel concurred with the Crown’s submission and pointed out some personal mitigating factors on the Appellant’s behalf.

He also submitted that, in light of the factors known and unknown to the court, three years was a reasonable sentence. [ 5 ] The joint submission, accordingly, was for a total sentence of three years imprisonment, less time served since April 23, 2010, as well as the required orders for DNA, sex offender registration and firearms prohibition, and a waiver of the victim surcharge. [ 6 ] Following the joint submission the sentencing judge stated that he wished to reflect on the appropriateness of the proposed concurrent sentences.

He said at pages 20-21 of the July 9, 2010 transcript of proceedings: Counsel, ah, in terms of the range of sentence, I agree that, ah, you’ve correctly pointed out the appropriate range of sentence for the offences. I do want to give some pause and to take some time to reflect on the appropriateness of concurrent sentences.

I say that because the Court of Appeal said in Crocker , and Crocker ’s the first case that comes to mind, but they said on multiple occasions that, ah, separate criminal adventures should be dealt with by way of consecutive sentences and, ah, if, I’m paraphrasing the Court of Appeal now, but, ah, because I don’t have the decisions right in front of me but, ah, generally separate crimes, the general rule is that separate crimes ought to have separate and consecutive sentences unless the principle of totality requires the sentences to be mitigated.

Having said that, what I’m going to do is I’m going to reserve the decision, ah, ‘til next week. Ah, I think it--you don’t need to come to Grand Bank for it. … And later at p. 22: Okay. July 21st … I’ll sentence you on that date. [ 7 ] On July 21, 2010 the sentencing judge gave his decision in which he rejected the joint submission, concluding that five years in custody was appropriate.

He noted, following a review of case law, that the normal sentencing range for non-consensual sexual intercourse was from three to seven years and that an appropriate sentence for sexual assault comprising digital penetration was imprisonment for one year. He outlined next the role of the trial judge in determining sentence and the recent case law, including the decisions of the Court in R. v. Druken , 2006 NLCA 67 , 261 Nfld. & P.E.I.R. 271 and R. v. Oake , 2010 NLCA 19 , 296 Nfld. & P.E.I.R. 79, respecting joint submissions.

He then explained the reasons for his rejection of the joint submission: [36] It has long been the law that, subject to the principle of totality, separate criminal adventures ought to receive consecutive sentences. … … [40] The decisions of our Court of Appeal i n R. v. E.J.W., R. v. Crocker, and R. v.

Spellacy remain binding on the courts in this jurisdiction: … The law requires separate and consecutive sentences for separate criminal adventures. [41] The accused committed three separate and distinct offences of sexual assault, on three different complainants, in three different rooms in one residence over the course of one evening. This is not a case of three offences being committed as part of one criminal adventure.

On the contrary, these are separate criminal adventures, committed at different times, against different victims. … [43] To sentence the accused to a total of three years, by making the one year sentences for the digital penetration of the two other complainants concurrent to the three year sentence for the sexual intercourse offence would effectively mean that there would be no real penalty for the accused for having committed those two offences. [44] Such a result would, in my view, fail the test from Oake , as set out earlier, i.e., it would result in a decision which would cause an

informed and reasonable public to lose confidence in the institution of the courts. This, because the accused would be in the sameposition as if the charges had been withdrawn, despite his guilty pleas to the two offences, each offence having been committed againstchildren aged fifteen years old. No informed and reasonable person would consider such a ludicrous result to be the product of acorrectly functioning system of justice.

In other words, it would have the effect of undermining public confidence in the institution of thecourts. [45] Accordingly, the joint submission as to length of sentence is endorsed, but as to concurrency is rejected. The accused will serve atotal sentence of five years in prison, less credit for time spent on remand awaiting disposition. … (Emphasis added.) ISSUES [8] The issues are whether leave to appeal against sentence should be granted, and, if so, whether the sentencing judge erred inlaw in rejecting the joint submission.

If this Court finds that the trial judge erred, his sentencing decision will be set aside, and it will fallto this Court to determine sentence. ANALYSIS [9] The test for leave to appeal a sentencing decision is whether the appeal is “frivolous in the sense of having no arguable basisor sufficient merit”. (See R. v. Lavers, 2010 NLCA 73 at paragraph 10.) [10] We are of the view that this appeal is not frivolous. It raises a legitimate issue as to whether the sentencing judge erred in theapplication of established legal principles to consideration of a joint sentencing submission.

Accordingly, leave to appeal is granted. [11] As to the merits of the appeal, it is our respectful conclusion for the reasons stated below that the sentencing judge did err inlaw in rejecting the joint submission. [12] First, the procedure followed by the sentencing judge was fundamentally flawed in that he did not clearly advise counsel that hewas inclined not to accept the joint submission and then allow counsel to make further submissions.

This Court clearly stated in Oakethat such a procedure is required when a judge is disinclined to impose the jointly submitted sentence (see paragraphs 74 to 78). [13] In Oake, Rowe, J.A. said the following: [74] There is a further basis on which I considered setting aside the sentencing judge’s decision. It relates to procedural fairness. [75] The Alberta Court of Appeal stated in R. v.

Tkachuk (2001), 2001 ABCA 243 , 159 C.C.C. (3d) 434 at 443: If the sentencing judge is disinclined to impose the sentence recommended, the judge should so advise counsel and permit them to makefurther submissions in support of their original position and against the suggestion that the submission be departed from. This wouldprovide counsel an opportunity to answer any concerns the sentencing judge may have for departing from the recommended sentence. [76] The Manitoba Court of Appeal set out a similar view in R. v.

Sinclair (2004), 2004 MBCA 48 , 185 C.C.C. (3d) 569 atpara. 17: The sentencing judge should inform counsel during the hearing if the court is considering departing from the proposed sentence in orderto allow counsel to make submissions justifying the [joint submission]. [77] The Ontario Court of Appeal set out a similar view, as well, in R. v. Tsicos (2006), (ON CA), 216 O.A.C. 104at para. 4: [T]he sentencing judge rejected the joint submission without informing counsel that he was disinclined to accept it and affording them anopportunity to make further submissions on the matter … .

The Court made clear that the sentencing judge should have afforded counsel an opportunity to make further submissions. [78] I would adopt the approach set out in the preceding cases. The sentencing judge should advise counsel if he or she is “disinclined”to impose the jointly submitted sentence and should provide counsel with an opportunity to present submissions in support of the jointsubmission. To the extent the judge can, he or she should alert counsel to the nature of the concerns regarding the joint submission.

Thejudge must also not close his or her mind to the possibility of accepting the joint submission. [14] The Alberta Court of Appeal, in addition to R. v. Tkachuk noted above, dealt with this issue in R. v.

Koch, 2001 ABCA 227 inwhich it stated in paragraph 10: If a judge is inclined to reject a joint submission, before doing so, the judge must advise counsel of his or her concerns, inquire into thecircumstances underlying the joint submission and allow counsel to make further submissions. [15] In this case the sentencing judge, following receipt of the joint submission, stated that he wanted time to reflect on theappropriateness of the concurrency of the two one year sentences. The sentencing judge did not clearly indicate at that time that he wasdisinclined to accept the joint submission.

Perhaps he did not know at that time. However, he set the matter over for decision to July 21,2010, which happened to be a date when neither counsel was able to be present. On July 21, 2010, the sentencing judge delivered awritten judgment rejecting the joint submission and sentencing the Appellant to five years. The proper course of action would have beenfor the sentencing judge to advise the offender and Crown agent on July 21, 2010 that he was disinclined to accept the joint submission,and invite further submissions on the issue which was troubling him.

In view of the clear direction given in Oake, the failure of thesentencing judge to follow the established procedure is reversible error. For that reason alone we would set aside the sentencing

decision. [ 16 ] There is a second problem with the trial decision. It concerns the sentencing judge’s application of the legal test respecting acceptance of joint submissions. That test was affirmed and its proper application was explained at paragraphs 61 and 63 of R. v.

Oxford , 2010 NLCA 45 , a decision of this court released on the same day as the decision now under appeal: [61] In Newfoundland and Labrador, the test is as stated in Druken : to reject a joint submission, the sentencing judge must be satisfied, on proper grounds, that the acceptance of the proposed sentence would “bring the administration of justice into disrepute” or would otherwise be “contrary to the public interest”.

Absent one or other of those findings, properly supported, the joint submission should be accepted. … … [63] The applicable test for determining whether a joint submission should be accepted therefore requires the sentencing judge to focus, not on general sentencing questions such as fitness, proportionality and range of sentence but on the much more discrete inquiries of whether the imposition of the recommended sentence will, in the circumstances of the case, bring the administration of justice into disrepute and whether the sentence is contrary to the public interest.

This is different from simply considering whether the sentence is “fit” or falls within the range of sentences for offences of the type in question. [ 17 ] Also in paragraph 63 of Oxford , this Court emphasized Rowe, J.A.’s words at paragraphs 28 and 29 of Druken , as follows: [28] … The question is not whether such a sentence should be imposed were [the offender] convicted at trial.

Rather, it is whether the sentence is so lenient that, in the circumstances of the case, it is “contrary to the public interest or would otherwise bring the administration of justice into disrepute” to agree to impose it. [29] A sentence could be contrary to the public interest and bring the administration of justice into disrepute in a variety of ways. These it would be unwise to seek to compass. In this case, the proposed sentence would be contrary to the public interest were it so light as to undermine the deterrent effect of the ordinary expectation of a sentence for manslaughter.

Similarly, the sentence would bring the administration of justice into disrepute were it so inordinately lenient and markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the criminal justice system. (Emphasis added) [ 18 ] As noted in Oxford , a sentencing judge must not only state the Druken test, he or she must comply with it “without adulterating it”. [ 19 ] In this case the sentencing judge focused on the general law respecting the determination of consecutive and concurrent sentences.

He concluded that a failure to impose the full tally of the three year and two one year sentences would bring the administration of justice into disrepute because the Appellant would not be seen to have been penalized at all for the less serious offences. This characterization of the joint submission is flawed. Crown counsel, in her submission to the Court on the joint proposal, did say that the Crown’s approach to the Appellant’s sentence was three years for the more serious sexual assault plus two one year concurrent sentences for the less serious offences.

This is but one way to describe the recommended three years. The jointly proposed three year sentence could also be said to reflect a one year sentence for each offence, or a two year sentence for the most serious assault and six months consecutive for each of the others. Such “mathematical” approaches, however, are not appropriate when considering a joint submission, for it is the very fact that there is a joint submission which calls for an adjustment downward from what would otherwise be a sentence based on ordinary principles.

Much like an adjustment based on the totality principle, an adjustment downward is logically applicable to any and all of the component parts of a total sentence. It is the total sentence for the three offences in the context of the joint submission which is at issue in this case. [ 20 ] In our view, the sentencing judge ought to have recognized that sentences which would run consecutively on the application of ordinary sentencing principles could be characterized as concurrent in order to achieve a proper sentence in the context of the proposed joint submission.

The sentencing judge’s analysis did not acknowledge or consider the quid pro quo and the overall context of the joint submission when he reached his conclusion that informed and reasonable persons would view running the sentences concurrently as “ludicrous”. [ 21 ] In

summary, the sentencing judge, though purporting to follow the Druken test, failed to focus on the discrete inquiries mandated by that test and in particular, failed to give proper weight to the considerations underlying the joint submission. For that reason also the sentencing decision should be set aside. THE APPROPRIATE SENTENCE [ 22 ] It now falls to this Court to determine an appropriate sentence for the Appellant. The joint submission of a three year sentence in addition to the mandatory orders must be considered by this Court. If it is acceptable then this Court will impose it and the matter will end.

If accepting the joint submission would bring the administration of justice into disrepute or would otherwise be contrary to the public interest, then this Court must impose an appropriate sentence. THE LAW [ 23 ] A trial judge has the sole responsibility and authority to sentence offenders. As recently stated at paragraph 15 of Lavers , a bargain between counsel cannot remove the obligation and right of a trial judge to sentence an offender.

Accordingly, he or she can reject a joint submission following consideration of the same, but only in accordance with established guiding principles. [ 24 ] The test a sentencing judge must apply when considering a joint submission is well known and was recently reaffirmed by this Court in Oxford as referenced in paragraph 16 above. Additional guidance on the application of the test is provided in paragraph 63 of Oxford .

[25] This test must now be applied to the facts and circumstances of this case. [26] It could be said that ordinary sentencing principles are a starting point to judging the appropriateness of a joint sentencingsubmission.

As stated in paragraph 68 of Oxford, they “provide a screen, along with other considerations, to analyze the appropriatenessof the joint submission in the context of the circumstances leading to the guilty plea and the ‘bargained’ proposed sentence.” Asentencing judge must also be mindful that an acceptable jointly submitted sentence can be more lenient than the lower end of the normalrange (Oxford, paragraphs 64 and 65).

In fact, this is most often the case; otherwise there would be no need for a joint submission. [27] In this case, the sentencing judge determined that five years would be a fit sentence for the Appellant. Even if, by theapplication of ordinary principles of sentencing to the facts, this could be regarded as an appropriate sentence, the existence of the jointsubmission mandates additional and different considerations.

The normal range of sentence, the quid pro quo and other relevant factorsadvanced by counsel as having influenced the proposed sentence must inform the sentencing judge’s analysis. [28] We accept the submissions of the Crown that three to seven years is the appropriate range of sentence for forcible sexualassault involving intercourse. Likewise, no issue is taken with the appropriateness of a one year sentence for sexual assault involving asingle instance of digital penetration on the facts of this case.

Accordingly, the ranges against which the quid pro quo and jointsubmission can be assessed are established. [29] At this point, the quid pro quo must be ascertained. As was stated in Oxford, it is essential to know whether there is quid proquo and what it is “in order to establish the proper context in which to weigh any variation from the norm that would otherwise beapplied” (para. 82).

It is only then that a court can determine whether the proposed sentence is so inordinately lenient and markedly outof line with the expectations of reasonable persons aware of the circumstances of the case, that it would be contrary to the public interestor bring the administration of justice into dispute. [30] The Appellant pleaded guilty.

The “quid pro quo” of his guilty plea was three-fold: 1) it was a forfeiture of his right to a trialand chance to be found not guilty, 2) it relieved the victims from the trauma of testifying, which in this case is not to be underestimatedgiven the nature of the charges and the ages of the victims, and 3) it alleviated strain on precious legal and judicial resources.

In additionto the guilty plea, both Crown and Defence counsel noted on the record before the sentencing judge that factors unknown to the Courtwere taken into account in their agreement on a joint submission. [31] Defence Counsel also advised the sentencing judge of some of the Appellant’s personal circumstances which could beconsidered mitigating.

As well, counsel acknowledged that the Appellant had a prior, unrelated criminal conviction in respect of whichhe had been ordered to pay compensation, and that he had fully complied with the court order. [32] When the quid pro quo for the Appellant’s guilty plea and the assurance by counsel of the existence of other factors unknownto the court are considered, the three year sentence becomes acceptable. That “unknown” factors may legitimately influence a jointsubmission was recognized by the Nova Scotia Court of Appeal in R. v. MacIvor (2003), 2003 NSCA 60 , 215 N.S.R. (2d)344.

In that case, Cromwell, J.A. said this at paragraph 32: Even where the proposed sentence may appear to the judge to be outside an acceptable range, the judge ought to give it seriousconsideration, bearing in mind that even with all appropriate disclosure to the Court, there are practical constraints on disclosure ofimportant and legitimate factors which may have influenced the joint recommendation.

On this issue, we note that in both Oxford and Lavers, the quid pro quo for the respective joint submissions appeared to have beenentirely before the Court so as to enable a full analysis of the appropriateness of the joint submission. Unless it is clearly inappropriate,it is preferable that counsel provide full disclosure of the quid pro quo.

In the absence of such disclosure, it may be difficult for the courtto conclude that the quid pro quo justifies departure from what would otherwise be an appropriate sentence. [33] In conclusion, on the facts and in the circumstances of this case, and after considering the range of sentence for these offences,the quid pro quo and other submitted factors, we are of the view that the joint submission for a three year custodial sentence is not solenient or markedly out of line that a reasonable person, aware of the circumstances of this case, would view it as a breakdown in theproper functioning of the criminal justice system.

The three year sentence remains a substantial custodial sentence in the circumstancesof this case. Acceptance of the joint submission is not contrary to the public interest and does not bring the administration of justice intodisrepute. [34] Accordingly, the appeal is allowed. The Appellant is sentenced in accordance with the terms of the joint submission as set outin paragraph 5. ______________________________ K. J. Mercer, J.A. ______________________________ L. R. Hoegg, J.A. I Concur: ____________________________

C. W. White, J.A.