R. v. Omilgoituk, 2011 NLCA 77

Date: 20111201 Docket: 11/50 Citation: R. v. Omilgoituk , 2011 NLCA 77 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HERMAN OMILGOITUK APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Wells, White and Hoegg, JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John’s, NL Appeal Heard: October 20, 2011 Judgment Rendered: December 1, 2011 Reasons for Judgment by Hoegg, J.A. Concurred in by White, J.A. Separate Concurring Reasons by Wells, J.A. Counsel for the Appellant: Self Represented

Counsel for the Respondent: Jeffrey Summers Hoegg, J.A.: INTRODUCTION [ 1 ] Herman Omilgoituk appeals his sentence of 12 months incarceration for break and entry and assault convictions. Mr. Omilgoituk represented himself in this Court, although he was represented by counsel at his sentencing hearing. FACTS [ 2 ] In the early morning hours of November 17, 2010, an altercation occurred between Mr. Omilgoituk and Winston Williams. Mr. Williams had gone to Mr. Omilgoituk’s residence thinking that Mr. Omilgoituk may have needed his assistance. Upon his arrival, Mr. Williams was assaulted by Mr. Omilgoituk because Mr.

Omilgoituk believed that something was going on between his girlfriend and Mr. Williams. Mr. Williams was able to break free, leave Mr. Omilgoituk’s home and return to his own home a short distance away. Mr. Omilgoituk followed. Upon his arrival at Mr. Williams’ house, Mr. Omilgoituk shouted that he would slit Mr. Williams’ throat and began kicking the door, eventually breaking the door frame and gaining entry. Inside, he punched Mr. Williams in the face a few times before Mr. Williams was able to push Mr. Omilgoituk onto the steps outside. Mr.

Omilgoituk subsequently pleaded guilty to break and entry and assault ( s. 348(1) (

a) and s. 266 of the Criminal Code respectively), both indictable offences stemming from the incident. A threats charge ( s. 264.1(1) (a)) was withdrawn. A pre-sentence report was requested and the matter was set for sentencing on May 4, 2011. [ 3 ] At the sentencing hearing, the Crown argued for a sentence of two to three years incarceration, citing the need for emphasis on specific and general deterrence in cases of home invasion. Counsel for Mr. Omilgoituk argued for a conditional sentence in the range of six to eighteen months, citing mitigating factors in Mr.

Omilgoituk’s favour as well as his very positive pre-sentence report. [ 4 ] Following submissions, the trial judge adjourned the hearing until later in the day, when she delivered her oral decision. She sentenced Mr. Omilgoituk to 12 months incarceration on each count to be served concurrently followed by 12 months probation with simple conditions, and issued the requisite DNA and Firearms orders. The trial judge declined Mr. Omilgoituk’s request for a conditional sentence on the bases of concern about Mr.

Omilgoituk’s alcohol abuse coupled with his violent behaviour and that his living arrangements were not conducive to serving a long sentence in the community. When arrested, Mr. Omilgoituk was living with the mother of his 19 month old child. However, this relationship subsequently ended, the child was taken into the care of the Director of Child, Youth and Family Services, and Mr. Omilgoituk moved in with friends. LEAVE TO APPEAL [ 5 ] In his Notice of Appeal/Notice of Application for Leave to Appeal, Mr. Omilgoituk stated he was seeking a conditional sentence so that he could work.

In his factum, he reiterated this request, and also sought “an earlier release date” from his incarceration. [ 6 ] The Crown’s position is that leave to appeal should be denied Mr. Omilgoituk because his grounds of appeal have no arguable merit. The Crown maintains that a conditional sentence was not and is not available to Mr. Omilgoituk, that the trial judge made no error in sentencing Mr. Omilgoituk and that his sentence of 12 months incarceration is not demonstrably unfit. Accordingly, the Crown argues that there is no reasonable prospect of Mr. Omilgoituk succeeding in his appeal. [ 7 ] Section 675(1) (

b) of the Criminal Code requires an appellant who appeals his sentence to obtain the leave of the court before the court can consider the appeal. To obtain leave, an appellant must show an “arguable basis or sufficient merit to support the conclusion that there is a reasonable prospect for success.” ( R. v. Jesso , 2008 NLCA 30 , 276 Nfld. & P.E.I.R. 147 at paragraph 13 and R. v. Perrier , 2009 NLCA 1 , 282 Nfld. & P.E.I.R. 171) [ 8 ] Mr. Omilgoituk is self-represented. After hearing him, this Court could not say that his position had no arguable merit. Accordingly, leave was granted.

ISSUES [ 9 ] This sentencing appeal involves two issues: 1. Is a conditional sentence available to Mr. Omilgoituk? 2. Should the sentence be varied? ANALYSIS 1. Availability of a Conditional Sentence [ 10 ]

Section 742.1 of the Code sets out the category of offenders to whom a conditional sentence is available. It reads: 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752 , a terrorism offence or

a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more oran offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years andis satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistentwith the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervisingthe offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’scompliance with the conditions imposed under

section 742.3. (Emphasis added.) This

section makes clear that conditional sentences are not available to persons convicted of serious personal injury offences. Was Mr.Omilgoituk convicted of a serious personal injury offence? The Legislation [11] The Code provisions relevant to whether Mr. Omilgoituk was convicted of a serious personal injury offence are sections 752,348(1)(

a) and 266, the latter two being the offences of which Mr. Omilgoituk was convicted.

Section 752 defines “serious personalinjury offence”. It reads: “Serious personal injury offence” means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychologicaldamage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault),

section 272 (sexual assault with a weapon,threats to a third party or causing bodily harm) or

section 273 (aggravated sexual assault).

Section 348 reads: 348.

(1) Every one who (

a) breaks and enters a place with intent to commit an indictable offence therein, (

b) breaks and enters a place and commits an indictable offence therein, or (

c) breaks out of a place after (

i) committing an indictable offence therein, or (ii) entering the place with intent to commit an indictable offence therein, is guilty (

d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and (

e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for aterm not exceeding ten years or of an offence punishable on

summary conviction.

Section 266 reads: 266. Every one who commits an assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or (

b) an offence punishable on

summary conviction. The Caselaw [12] At sentencing, Mr. Omilgoituk relied on R. v. Pastiwet (K.) (2008), (NL PC), 290 Nfld. & P.E.I.R. 136(NL Prov. Ct.) in support of his contention for a conditional sentence. Mr. Pastiwet was sentenced to six months of house arrest inrelation to being convicted of assault with a weapon and various concurrent sentences for assault, uttering threats, and breaches of aprobation order and an undertaking. The assault with a weapon offence occurred in October, 2008. Mr.

Pastiwet’s conviction for assaultwith a weapon involved him hitting his spouse twice with a piece of wood, hitting her with a skidoo helmet and twisting her right ankle. The Code provides a maximum sentence of 10 years for this offence. The offence took place in the home of the accused and victim;there was no break and entry. In consideration of the appropriateness of a conditional sentence, the trial judge comprehensivelyreviewed the facts and personal histories of both Mr. Pastiwet and his spouse, the general purposes and principles of sentencing, various

aggravating and mitigating factors including Mr. Pastiwet’s aboriginal status, and the victim’s support for a conditional sentence.Pastiwet sentencing decision did not address the availability of a conditional sentence to Mr. Pastiwet in the context of whether he wasconvicted of a serious personal injury offence. Accordingly, although the Pastiwet sentencing decision may be of some guidance when aGladue (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688) analysis is at issue, it is of no precedential value in relation toconditional sentencing. (See also R. v.

O’Keefe, 2011 NLCA 41, 309 Nfld. & P.E.I.R. 253 where the offender’s offence attracted amaximum sentence of 10 years. This Court rejected the argument that “serious personal injury offence” in

section 742.1 only applies tooffences for which the sentence is in excess of 10 years as opposed to including 10 years.) [13] The

interpretation of serious personal injury offence as defined in

section 752 was also recently considered in R. v. Kasprow,2010 ABCA 315, 502 A.R. 99 which is factually similar to the within case. Kasprow involved two co-accused who pleaded guilty tobreaking and entering a dwelling house and committing the indictable offence of assault therein. They were given conditional sentencesof 12 months. On a Crown appeal, the Alberta Court of Appeal found that

section 752 of the Code bars conditional sentences forpersons convicted of breaking and entering a dwelling house and committing an assault therein. [14] In R. v. Lebar, 2010 ONCA 220, 101 O.R. (3d) 263 the Ontario Court of Appeal considered the meaning of serious personalinjury offence in the context of a robbery which involved the offender holding a knife with a five inch blade close to a cashier in order topersuade her to hand over money. At trial, Mr. Lebar argued and the trial judge accepted, that his act of holding the knife up to thecashier was not sufficiently violent to engage the operation of subsection (a)(

i) in the

section 752 definition of serious personal injuryoffence. The Crown appealed. The Court of Appeal allowed the Crown’s appeal, ruling that Mr. Lebar’s conduct with the knifeinvolved the use or attempted use of violence, and that once it is established that violence has occurred,

section 752 of the Code leaves acourt no discretion in determining availability of a conditional sentence by qualitatively assessing the degree of violence.

The Courtstated at paragraph 69 that “for the purposes of the availability of a conditional sentence, Parliament created a divide between crimeswhere violence is or is not used, not between crimes of serious violence and less serious violence.” [15] Although the word “violence” is not defined in the Code, if it is “read in its entire context and in its grammatical and ordinarysense harmoniously with the scheme of the Code, its object and the intention of Parliament”, it surely encompasses the three or fourpunches in the face that Mr. Omilgoituk delivered to Mr. Williams in Mr.

Williams’ home. (See Lebar, paragraphs 31 to 39, citingElmer A. Driedger, The Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) at p. 87) [16] Mr. Omilgoituk was convicted by indictment of break and entry which involved the use of violence against another person. This conviction carried a potential sentence of life imprisonment because the break and entry was into Mr. Williams’ dwelling house(see section 348(1)(d)). Accordingly, Mr. Omilgoituk’s section 348(1)(

a) conviction is clearly encompassed by the definition of seriouspersonal injury offence as found in

section 752. [17] In the result, regardless of submissions of both Crown and Defence counsel at the sentencing hearing and the trial judge’sconsideration of a conditional sentence for Mr. Omilgoituk, a conditional sentence was and is not available to Mr. Omilgoituk. 2. Should the Sentence be Varied? [18] The law governing appellate review of sentencing was set out by former Chief Justice Lamer at paragraph 90 of R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. As s. 717(1)reads: 717.

(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposedis, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts the person who commits the offence. [Emphasis added.] Did the Sentencing Judge Err in Principle? [19] In sentencing Mr. Omilgoituk, the trial judge correctly considered Mr. Omilgoituk’s break and entry into Mr. Williams’dwelling house when Mr. Williams was inside and Mr. Omilgoituk’s assaults of Mr. Williams once inside as aggravating factors. Thisconsideration is statutorily mandated by

section 348.1 of the Code, as was observed by Rowe J.A. in R. v. Newhook, 2008 NLCA 28, 276Nfld. & P.E.I.R. 190 at paragraph 28. The trial judge also correctly took into account several factors in Mr. Omilgoituk’s favour, such ashis early guilty plea, his positive pre-sentence report, his lack of criminal record, his personal health issues and addictions and his effortsto deal with them, and his aboriginal status. There was no weapon used and no indication that Mr. Williams suffered lasting injury andMr. Omilgoituk accepted full responsibility for his behaviour.

The trial judge was very alert to the mitigating factors, evidenced by hercomment “there are a lot of positives here” and her observation that the incident leading to the convictions was “an isolated event”. [20] The trial judge commented several times that Mr. Omilgoituk battled drug and alcohol addictions, although she noted that hereported that he had not used drugs or alcohol since the month in which these offences took place and that he was receiving addictionscounseling. Mr.

Omilgoituk’s Pre-Sentence Report identified his alcohol/drug abuse as a significant criminogenic factor leading to theassessment that he was at a high level of risk to re-offend. The trial judge stated her concern about substance abuse coupled withphysical violence and the potential for great harm to potential victims in relation to her consideration of the appropriateness of Mr.Omilgoituk serving a sentence in the community. This concern, along with Mr. Omilgoituk’s unstable living situation and theseriousness of his offences led her to reject a conditional sentence.

As discussed above, such a sentence was not, in any event, availableto Mr. Omilgoituk.

[21] It has not been demonstrated that the trial judge erred in principle or erred in her application of the relevant and appropriatefactors in determining his sentence. Is The Sentence of 12 Months Incarceration Demonstrably Unfit? [22] In considering whether 12 months incarceration for Mr. Omilgoituk is demonstrably unfit, regard must be had to the sentencesimposed in this jurisdiction on like offenders for like offences. [23] In Newhook, the offender received at trial a total sentence of 23 months imprisonment and two years probation for three sets ofoffences occurring over a five-month period.

One set of offences included a home invasion coupled with assault of the occupant. TheCrown appealed sentence. On appeal, Newhook focused primarily on the appropriateness of concurrent versus consecutive sentencesand application of the totality principle. However, after finding that the sentencing judge erred, this Court attributed a three-yearsentence to the offender in relation to his conviction for break and entry into an occupied dwelling and nine months concurrent for theassault with a weapon which he committed therein.

In Newhook, the Court was alive to the distinction between the broad category ofhome invasions into which both Newhook and this case fall, and home invasions involving robbery. Both Newhook and this case couldbe said to arise from what could be described as domestic disputes although the assault in Newhook was more serious than Mr.Omilgoituk’s assault of Mr. Williams. In Newhook, Rowe J.A. characterized entering someone’s home and injuring an occupant as asignificant aggravating factor on sentence, and quoted from paragraph 81 of R. v.

Harris, 2000 NSCA 7, 181 N.S.R. (2d) 211 to makethe point: These types of offences (home invasion) require denunciation by society, deterrence of the accused and others from committing this typeof offence, and protection of the public as the primary considerations of sentencing those who choose to invade the sanctity of the homeof another and do violence through intimidation, terrorism or actual assault. Newhook also affirmed that 18 months is at the low end of the acceptable range for a home invasion offence (at paragraph 35) as hadbeen observed by Wells C.J.N.L., as he then was, in R. v.

P.J.B. (1999), (NL CA), 182 Nfld. & P.E.I.R. 14 (Nfld.C.A.). A distinguishing feature of P.J.B. is that the offender was armed with a shotgun when he broke into and entered a dwelling house. [24] In R. v. Gear, 2005 NLTD 159, 250 Nfld. & P.E.I.R. 342, a father and son were convicted of breaking and entering the victim’sresidence and assaulting him. The offences were similar to this case in that they were instigated in the belief that the victim was to blamefor the dissolution of Mr.

Gear Sr.’s marriage, and the altercation had commenced elsewhere and continued to the victim’s home towhich the offenders gained entry by breaking and entering. In Gear, the victim’s injuries were more serious, although the mitigatingfactors of the offenders were similar to those of Mr. Omilgoituk. Mr. Gear Sr., the main perpetrator, was conditionally sentenced to 21months while Mr. Gear Jr. was conditionally sentenced to 18 months. Of note, Gear predates the 2007 amendments to the Code whichdefine serious personal injury offences.

If Gear were to be decided today, conditional sentences would not be available to theseoffenders. [25] In R. v. Hynes (2008), 273 Nfld. & P.E.I.R. 321 (NL Prov. Ct.), the offender was sentenced to three years for entering thevictim’s home with intent to steal money while armed with an offensive weapon. Hynes is clearly distinguishable from the case at handin that Mr. Hynes, with another, planned to carry out the robbery in relation to a targeted dwelling. [26] A paragraph 13 of Hynes, Hyslop, P.C.J. references an unreported case, R. v. Hayes (15 January, 2008), St. John’s [Docketnumber unknown] (NL Prov.

Ct.), which appears to be similar to this case. Hayes involved charges arising from the victim’s previousassault of the offender’s mother. A verbal dispute between the offender and victim accelerated and overflowed into the victim’sdwelling, which the offender unlawfully entered. The trial judge took into consideration Mr. Hynes’ exemplary background and theunique circumstances of the case, and gave him an 18 month conditional sentence. Like Gear, a conditional sentence would no longerbe available to Mr. Hayes on the facts.

Despite the fact that the 21 and 18 month conditional sentences in Gear and Hayes would not beavailable to these offenders today, the length of those sentences speaks to the seriousness of home invasions involving assault even whenthere are significant mitigating factors. [27] It is clear from the caselaw that Mr. Omilgoituk’s sentence of 12 months is low and could be said to be below the range,although the Crown has not argued or even raised this issue. However, the sentence is acceptable in the circumstances for the reasonsgiven by the trial judge.

She declined to impose the two to three year sentence the Crown was seeking, saying it would be “oppressiveand out of proportion and counter-productive” to Mr. Omilgoituk, and she found 12 months incarceration plus probation appropriate inthe circumstances. She clearly was balancing the need for a just and appropriate sentence for the protection of the community againstMr. Omilgoituk’s moral blameworthiness and the circumstances of the offence. [28] Chief Justice Green expressly acknowledged in R. v.

Oxford, 2010 NLCA 45, 299 Nfld. & P.E.I.R. 327 that notions ofproportionality and determinations of appropriate ranges are protean concepts. At paragraph 75 of Oxford, he referenced the followingcomment of LeBel J. at paragraph 44 of R. v. Nasogaluak, 2010 SCC 6: [44] The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code.

But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range so long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [29] I would therefore characterize Mr.

Omilgoituk’s sentence of twelve months as being at the very low end of the range butjustified on the facts. As such, it is not demonstrably unfit. (Also see Newhook paragraph 42) [30] It was apparent from Mr. Omilgoituk’s presentation in this Court that he is genuinely remorseful. The trial judge expressed thehope that Mr. Omilgoituk would “sort himself out” and benefit from programming while incarcerated. Mr. Omilgoituk has availed of

opportunities to manage his addictions and to improve his employment prospects both while on judicial interim release and during hisincarceration. He reports that he has made good progress. I commend him in these efforts. Hopefully, he will continue on this positivepath. [31] In the result, leave to appeal having been granted, Mr. Omilgoituk’s appeal is dismissed. ____________________________ L. R. Hoegg, J.A. I Concur: ______________________________ C. W. White, J.A. Wells, J.A.: [32] In her reasons, my colleague, Hoegg J.A., sets out the essential facts, describes the issues argued and identifies the applicablelaw. I agree with her conclusions that: (

i) a conditional sentence was not available in the circumstances; (ii) it was not demonstrated thatthe trial judge erred in principle; and (iii) the sentence imposed cannot, in all of the circumstances, be said to be demonstrably unfit. [33] However, I would add these further comments to emphasize that, in the circumstances found by the trial judge, had a lessersentence been imposed appellate intervention would not necessarily be warranted.

I am of the view that the comments are necessary toensure that my concurrence in this decision will not be construed as my agreeing that a lesser sentence for a similar offender in similarcircumstances should be precluded. [34] The comments of the trial judge make it obvious that she struggled with resolving the tension between failing to follow theprecedents by “going too short with this sentence” and her recognition that Mr.

Omilgoituk’s “uncharacteristic behavior” was “anisolated event” by a person with “absolutely no prior convictions”. [35] As required by the Code, she paid proper attention to the one aggravating factor, “entering a home forcefully with the intentionof assaulting somebody”. Nevertheless, she specifically recognized that the offence did not have “all the attributes of a home invasionsuch as one reads about in the case law generally”.

That conclusion was clearly based on her finding of the factual situation to be: … This is a situation where the accused suspected someone of having an affair with his girlfriend and got into an altercation with him on,as I understand it, his own doorstep.

And the complainant made his escape and ran to his girlfriend’s house and went in, managed to getin, and the accused then in pursuit to continue an assault kicked in the door and went inside and continued the assault. [36] In addition to the mitigating circumstances referred to in the two preceding paragraphs, the trial judge identified a number of other mitigating factors including: there was no premeditation here; …here was no weapon; …here was no injury that we are aware of;there’s been an early guilty plea; he’s accepted responsibility; he is dealing with post-traumatic stress disorder and that contributes to hisaddiction issues; and, it was done in the heat of the moment and in pursuit of somebody...an altercation had occurred outside and this wasa kind of hot pursuit into his home to continue it. [37] To consideration of those factors she added consideration of his behavior between the date of the offence and the time ofsentencing, including: that he recognized his substance abuse problems; that he was being treated and was receptive to help; and that “hehas not breached while he’s been out of custody”.

While she did not mention

section 718.2 of the Code specifically, she referred to itsrequirement for a court to consider all available sanctions other than imprisonment that are available in the circumstances, and to payparticular attention to the circumstances of aboriginal offenders. She acknowledged his aboriginal status and expressed her conclusionthat “there are a lot of positives here”. However, she concluded: …given the precedents, I don’t think I have the choice of going too short with this sentence. Sentences do have to deter the general—youknow, anybody sort of like minded.

There needs to be a message out there that we can’t go kicking in people’s doors and beating themup. [38] In all of the circumstances that she specifically recognized, in my view, it was open to the trial judge to impose a sentence ofless than one year if she thought that it would be the more appropriate sentence. While “the precedents”, to which she referred, identifyan acceptable range of sentences for break and entry into a home, departure from that acceptable range will not attract appellateintervention where the trial judge has identified a reasoned basis for departure. The comments of Rowe J.A. in R v.

Newhook, 2008NLCA 28, 276 Nfld. & P.E.I.R. 190 expressed the views of this Court when he commented on a decision of the British Columbia Courtof Appeal dealing with sentencing for a charge of kidnapping. In my view the comments are equally applicable to sentencing on a chargeof break and entry. Rowe, JA wrote: [41] Regarding kidnapping, I would note the view expressed by Chief Justice Finch in R. v.

Deo (2007), 2007 BCCA 626 ,249 B.C.A.C. 167 at para. 13: Given the infinite range of personal circumstances of those convicted of kidnapping, and the infinite variety of circumstances that canoccur in the commission of the offence itself, it seems evident to me that the full spectrum of penal consequences should be open to a

trial judge when sentencing for this offence. Although this Court sometimes expresses views as to an appropriate range of sentence for certain classes of offences, it has no mandate to exclude from consideration any sentence that is permitted by law under the Criminal Code . [42] I agree with the foregoing, with one caveat. It is proper for appellate courts to set an “acceptable range” of sentences for various offences (indeed, this is contemplated by Iacobucci J. in Shropshire ). Where a sentence falls within the range, it will usually not be seen as “demonstrably unfit”.

Sentences above or below the range will attract appellate intervention, unless the Trial Judge has set out a reasoned basis for departing from the range. [ 39 ] I agree with the comments of Chief Justice Finch and Rowe, JA.

I would also note that those views are completely consistent with the later comments of Lebel J., in Nasogaluak , quoted by my colleague in paragraph 28 above. [ 40 ] On my reading of her reasons, the comments of the trial judge can be said to establish a reasoned basis for departure from the acceptable range of sentences for those offences, in the circumstances of the offender in this case That being so, the precedents mentioned by the trial judge need not have caused the apprehension she expressed about “going too short with this sentence” [ 41 ] Notwithstanding the foregoing comments, for two reasons, I must agree with my colleague that the Court should not now intervene.

First, in addressing the trial judge as to sentencing, Mr. Omilgoituk’s counsel suggested that “six to eighteen months” total for both charges would be an appropriate sentence. Admittedly, he did so in the context of seeking a conditional sentence. However, in principle, that does not bear on the appropriate length of the sentence, so long as it is less than two years. Second, the trial judge did write that: “I’ve kept [the sentence] as short as I think is appropriate”.

There is nothing in her reasons that would allow me to conclude she meant “appropriate” in view of the precedents to which she referred rather than in view of the circumstances of the offender. Assuming, as I must, that she meant the latter, the sentence imposed is well within the acceptable range, is deserving of deference and cannot be said to be demonstrably unfit. [ 42 ] In passing I would also note that Mr.

Omilgoituk has already served more than half of his sentence and advises the Court that he has been accepted for temporary absence from incarceration through the auspices of the John Howard Society. [ 43 ] In the circumstances, I agree with my colleague’s disposition of the appeal. C. K. Wells, J.A.