R. v. Power, 2011 NLCA 68

Date: 20111012 Docket: 10/125 Citation: R. v. Power, 2011 NLCA 68 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : ALBERT POWER APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, White and Hoegg, JJ.A. Court Appealed From: Provincial Court of Newfoundland & Labrador Appeal Heard: September 15, 2011 Judgment Rendered: October 12, 2011 Reasons for Judgment by Welsh J.A. Concurred in by White and Hoegg, JJ.A. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Jeffrey Summers

Welsh, J.A.: [1] Albert Power pleaded guilty to and was convicted of ten offences including armed robbery, assault with a weapon, damage toproperty, uttering threats, assaulting a police officer, and related charges of breaching court orders. He was sentenced to a total of 76months imprisonment. Mr. Power seeks leave to appeal and, if granted, appeals his sentence on the basis that the trial judge mistakenlyunderstood that he was on parole at the time of the offences and, therefore, erred in considering this as an aggravating factor. Mr.

Poweralso applied to have post-sentence evidence admitted under rule 24 of the Supreme Court of Newfoundland and Labrador - Court ofAppeal Criminal Appeal Rules (2002). BACKGROUND [2] The trial judge began with the agreed statement of facts following Mr. Power’s guilty pleas ((2010), 301 Nfld. & P.E.I.R.352): [2] The facts as agreed between the prosecution and counsel for Mr. Power, were read into the record and can be summarized asfollows. On March 6, 2010 Mr. Power entered a convenience store while armed with a stick and broken beer bottle.

He banged the stickon the counter and yelled at the employee to “give him all the money”. The customer who was near the front of the store tried to stopthe robbery but was pushed against the wall by Mr. Power and punched in the face. From a review of the closed circuit television videorecording it is unclear as to whether Mr. Power struck the customer with the stick or with the clenched fist in which he was holding it. Mr. Power fled the store with approximately $800.00 cash.

The next day while under the influence of alcohol he damaged a door in theresidence of a lady with whom he had developed a personal relationship. Subsequent to his apprehension by police and while on remandat Her Majesty’s Penitentiary in St. John’s, he threatened to kill one of the nurses who was administering medication to him saying thathe would “stab him in the neck when he gets out of prison” and went on to indicate that the “threat was a promise”. While beingquestioned by Cst. Wilkins of the Royal Newfoundland Constabulary, he threw a cup of water at him.

On May 3, 2010 in an attempt tocommit suicide he set fire to the mattress in his cell. As a result of the fire his cell area became filled with thick smoke and the prisonhad to be evacuated and the fire department called to extinguish it. On the same day Mr. Power told one of the corrections officersworking at the penitentiary that he would “break his arm and kill him”. [3] All of these offences are serious but the most serious of them are the armed robbery and the arson charges. ISSUES [3] At issue in this appeal is whether the sentence imposed on Mr.

Power must be set aside due to the factual error the trial judgemade by taking into account as an aggravating factor that Mr. Power was on parole at the time of the offence. ANALYSIS Leave to Appeal [4] This is an appeal as to sentence only. Leave to appeal is, therefore, required (section 675(1)(

b) of the Criminal Code). Thetest to be applied is whether the appeal is “frivolous in the sense of having no arguable basis or sufficient merit” (R. v. Jesso (2008),2008 NLCA 30 , 276 Nfld. & P.E.I.R. 147 (NLCA), at paragraph 13; R. v. Perrier (2009), 2009 NLCA 61 , 293 Nfld.& P.E.I.R. 92 (NLCA), at paragraph 23). [5] In this case, Mr. Power submitted that the trial judge erred in imposing sentence because he mistakenly took into account anaggravating factor which did not apply. The Crown agreed that a factual mistake was made, but submitted that the error was not such asto require setting aside the sentence.

In the circumstances, it cannot be said that the appeal has no arguable basis. Accordingly, leave toappeal is granted. Post-sentence Evidence [6] Rule 24 of the Criminal Appeal Rules provides, in relevant parts:

(1) A party to the appeal may apply to the Court for an order that a post-sentence report be prepared.

(2) A party to the appeal may, with consent of the other party or with leave of the Court, file post-sentence information. [7] Mr. Power was granted an order for the preparation of a post-sentence report. The question is whether the report should beadmitted for consideration on this appeal. In addition, he wished to enter a letter from a chaplain at the prison. [8] Admission of evidence on an appeal against sentence is discussed in R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487.

Gonthier J., for the majority, cautioned: [20] … The integrity of the criminal process and the role of appeal courts could be jeopardized by the routine admission of freshevidence on appeal, since this would create a two-tier sentencing system. That kind of system would be incompatible with the highstandard of review applicable to appeals from sentences and the underlying “profound functional justifications”: see R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 91.

Despite the fresh evidence, the sentencing judge, unlike the appeal judge, has thebenefit of being able to directly assess the other evidence, the testimony and the submissions of the parties, as well as being familiar withthe needs and current conditions of and in the community where the crime was committed: see M. (C.A.), supra, at para. 91.

Furthermore, appeal courts are not the appropriate forum in which to determine questions of fact, and they should do so only when thefresh evidence presents certain characteristics such as would justify expanding their traditional role. … [9] Gonthier J. then adopted and summarized four criteria, referred to as the Palmer criteria, to be considered in determiningwhether post-sentence evidence is properly admitted:

[35] …

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue relating to the sentence.

(3) The evidence must be credible in the sense that it is reasonably capable of belief.

(4) The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected tohave affected the result. [10] Gonthier J. commented generally on these criteria: [32] … Evidence relating to events subsequent to the sentence or an accused’s rehabilitation process normally meet the due diligencecriterion, since by their very nature they were not available at the time of sentencing.

However, in order to be found to be admissible, theevidence must also satisfy the other criteria, particularly the criterion relating to the likelihood that the result would be affected. … [11] Gonthier J. then applied the criteria to the evidence sought to be adduced by Lévesque: [34] In this case, the majority of the Court of Appeal found (at para. 16) that the report by the psychologist, Mr. Daigle, wasadmissible because it explained the respondent’s past in greater detail and showed his personality from a perspective that was not evidentin the trial record. The report by the psychiatrist, Dr.

Morissette, was admitted in evidence because it shed additional light on Mr.Daigle’s report (para. 17). In my opinion, these grounds are inadequate to justify the admission of those two reports since they couldjustify the admission of a very broad range of additional evidence on appeal. Furthermore, the admission of any evidence on appealwhich merely adds certain details to or clarifies the evidence adduced at trial would be contrary to the Palmer criteria and the limited roleof appellate courts in respect of sentencing. [12] The same analysis applies to the evidence sought to be admitted by Mr. Power.

Both the report prepared by officials atCorrections Services Canada, which addresses Mr. Power’s progress in counseling and prospects for rehabilitation since the sentence wasimposed, and the chaplain’s letter satisfy the first criterion. However, assuming both also satisfy the second and third criteria, neitherpasses muster under the fourth criterion. Neither could be expected to have affected the result. The information contained in the post-sentence report is not unlike the information found in the pre-sentence report on which the trial judge relied. At the time of sentencingMr.

Power was classified as a high risk to reoffend. That prognosis did not change in the post-sentence analysis. Issues regarding Mr.Power’s mental health, drug addictions, character and prospects for rehabilitation were addressed in the material before the trial judge. The post-sentence material sought to be introduced in this case simply adds to or seeks to clarify the evidence adduced at trial. Additional detail merely expanding on the information before the trial judge does not satisfy the Lévesque criteria for the admission offresh evidence on a sentence appeal.

The assessment and conclusion set out above from paragraph 34 of the Lévesque decision wouldapply equally in this case. [13] Accordingly, the application for admission of the post-sentence information is denied. The Appeal [14] The circumstances in which a sentencing decision will be set aside on appeal are summarized in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500: [90] Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, acourt of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. … [15] A factual error resulting in the trial judge mistakenly taking into account an aggravating factor may, depending on thecircumstances, amount to an error in principle warranting the setting aside of the sentence. Where the effect of the aggravating factor issignificant the validity of the sentence will be undermined (R. v.

Rowe, 2008 NLCA 3, 273 Nfld. & P.E.I.R. 38, at paragraph 36). [16] In this case, counsel agree that the trial judge relied on incorrect information when he referred to Mr. Power being on parole atthe time of the offences. That would have been an aggravating factor to be taken into account in imposing an appropriate sentence. However, in the circumstances, the effect of the error was not material and was not such as to undermine the validity of the sentence. [17] At the time of the offences, Mr. Power, while not on parole, was on probation.

There were multiple other aggravating factorswhich, consistent with the pre-sentence report, resulted in the trial judge emphasizing deterrence, denunciation and the protection ofsociety rather than rehabilitation. In his factum, counsel for the Crown summarized relevant considerations: [20] Although Mr. Power was in fact not on parole when he committed the armed robbery on March 6, 2010, he was under aprobation order and had been in the community for just 16 days after receiving a sentence of time served and three years probation onFebruary 18, 2010 for an assault charge.

Further, this was his second robbery conviction. He is acknowledged to have 124 convictionsincluding 44 breaches of court orders and numerous convictions for violence. He has been incarcerated for the majority of his adult life. The pre-sentence report concluded that he remained an undiminished risk to re-offend criminally. … [18] The circumstances in this case are distinguishable from those in R. v. Rowe, supra, and in R. v. Murphy, 2011 NLCA 16, 304Nfld. & P.E.I.R. 266. In Rowe, the sentence was set aside on the basis that the trial judge considered inadmissible evidence that theoffence was premeditated.

The Court concluded that this factor was a significant consideration which fundamentally undermined thevalidity of the sentence. Similarly, in Murphy, the trial judge took into account a fact that was not determined to be proven; that is, thatthe victim was punched and choked during the commission of a sexual assault. This error was such as to undermine the validity of thesentence.

[ 19 ] In the circumstances, I am satisfied that, while the trial judge made a factual error in stating that Mr. Power was on parole at the time of the offences, the effect of that error was not material and was not such as to warrant setting aside the sentence. In the result, the appeal against sentence is dismissed.

SUMMARY AND DISPOSITION [ 20 ] Leave to appeal against sentence is granted. The post-sentence information does not satisfy the requirements for admission on the appeal. The application is, therefore, denied. The factual error made by the trial judge was not such as to undermine the validity of the sentence. Accordingly, the appeal against sentence is dismissed. _____________________________ B. G. Welsh, J.A. I Concur: _____________________________ C. W. White, J.A. I Concur: _____________________________ L. R. Hoegg, J.A.