R. v. Slaney, 2013 NLCA 70

Date: 20131216 Docket: 13/61 Citation: R. v. Slaney , 2013 NLCA 70 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : ROBIN HENRY SLANEY APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Mercer, Barry and Harrington JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John’s Appeal Heard: December 9, 2013 Judgment Rendered: December 16, 2013 Reasons for Judgment by Barry J.A. Concurred in by Mercer and Harrington J.A. Counsel for the Appellant: Self Represented Counsel for the Respondent: Carmel Penney Barry J.A.:

[1] Robin Slaney seeks leave to appeal his sentence of 10 months for 2 counts of driving while disqualified and one count ofbreaching probation. He pleaded guilty on an agreed statement of facts. The Facts [2] When Mr. Slaney was stopped while driving on July 12, 2012, police determined that he was prohibited from operating amotor vehicle and owed approximately $23,000.00 in fines. He was released on bail and on June 5, 2013 was again stopped whiledriving. He remained in custody from June 5th until his trial on July 5, 2013.

The Sentence [3] The trial judge imposed a sentence of 4 months for the July 2012 offence of driving while disqualified and a further 6 monthsin jail consecutive for the June 2013 offence, with 30 days in jail concurrent for breach of probation. The trial judge credited Mr. Slaneywith 30 days of pre-sentence custody on a 1-for-1 basis, leaving a total of 9 months in jail to be served by Mr. Slaney. The Submissions [4] Mr.

Slaney submits 10 months is too harsh a sentence for the driving offences, pointing out that he had only received 3 monthsfor earlier offences when he had more charges against him and that other individuals had received less time with more charges. Heexpressed concern the trial judge may have been biased because of hearing an earlier bail application concerning charges which werewithdrawn. He also submitted the Crown’s election to proceed by indictment was unfair.

Leave to Appeal [5] The Crown accepts that leave to appeal should be granted in light of the question of law arising from the trial judge’s failure toprovide reasons for not granting enhanced credit for pre-sentence custody on a 1.5-to-1 basis. The Criminal Code of Canada, R.S.C.1985, c. C-46, provides: 719(3) Determination of sentence - In determining the sentence to be imposed on a person convicted of an offence, a court may takeinto account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to amaximum of one day for each day spent in custody.

(3.1) Exception - Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent incustody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person wasdetained in custody under subsection 524(4) or (8).

(3.2) Reasons - The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record. The Law and Analysis Proceeding by Indictment [6] On the Crown proceeding by indictment, this is a decision given by law to the Attorney General, where the Court will notinterfere unless there has been flagrant impropriety by the Crown’s officers in exercising the discretion whether or not to proceedsummarily: R. v. Cousins (1998), (NL SC), 176 Nfld. & P.E.I.R. 20 (NLTD). Bias [7] Mr. Slaney had the burden of providing grounds to support his claim of bias: R. v.

Jones, 2008 NSCA 99, (2008), 270 N.S.R.(2d) 115, at paragraph 24, and authorities there cited. He could point to nothing in the trial record to support his allegation of reasonableapprehension of bias. The mere fact a judge heard another matter involving the same accused is not a sufficient basis for finding that thejudge was biased: Jones, at paragraph 26. The appeal cannot succeed on this basis.

Credit for pre-sentence custody and a fit sentence [8] The Crown concedes the trial judge erred in not providing reasons for granting 1-to-1 credit for pre-sentence custody, asrequired by subsection 719(3.2) of the Criminal Code. On the various decisions across Canada concerning the extent of judicialdiscretion under subsection 719(3.1) to grant credit on the basis of 1.5-to-1, see R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641, andR. v. MacIsaac, 2013 NLCA 2, at paragraph 79. The Crown correctly points out, however, that Mr.

Slaney was arrested on the latestcharges while under a recognizance and detained under subsection 524(4) of the Criminal Code. Therefore, by subsection 719(3.1), hewould be ineligible for any enhanced credit. [9] Generally, regarding the overall sentence, it should be sufficient to note for Mr. Slaney that this Court will not interfere with asentence imposed by a trial judge unless the sentence is demonstrably unfit or reflects an error in principle, fails to consider a relevantfactor, or over-emphasizes a relevant factor: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paragraph 46.

In that case, atparagraphs 40-41, the Court made it clear that the principle of proportionality set out in subsection 718.1 of the Criminal Code is centralto the sentencing process: a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of theoffender”. [10] At paragraph 42, the Court pointed out that this principle limits or restrains courts in sentencing by requiring that a sentence notexceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence, but this is counter-balanced by the principle’s alignment with the “just deserts” philosophy of sentencing, which seeks to ensure that offenders are heldresponsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused.

Inother words, this involves a form of judicial and social censure, with the court seeking to ensure the offender “gets what he deserves”.

Ultimately, courts must speak out against the offence while punishing the offender no more than is necessary. [ 11 ] In Mr. Slaney’s case, the judge in sentencing had to recognize the high degree of responsibility on Mr. Slaney’s part, where his offences were merely the latest in a string of at least 5 driving-while-disqualified offences dating back to 2001, interspersed with convictions for breaches of probation, assaulting peace officers and other offences, which establish Mr. Slaney had little or no respect for the laws which seek to protect the driving public.

The fact that the latest offence was committed while Mr. Slaney was on bail for a similar offence supports the conclusion that a substantial period of incarceration is required if he is going to be deterred from future offences. [ 12 ] Also, a significant period of incarceration is required to reflect the seriousness of the impact on the driving public should drivers decide to follow Mr. Slaney’s example.

He has two daughters and, if reckless regarding the impact on himself, he should consider the danger to his children should the law be unable to regulate the conduct of drivers. [ 13 ] On the “just deserts” approach, the general public is entitled to be “fed up” with the conduct of individuals like Mr. Slaney, who appear to believe they are entitled to drive, without a licence, insurance or proper registration and while accumulating fines in excess of $20,000.00, while law abiding citizens pay their annual fees for licencing, insurance and registration and their fines in the event of a driving offence. [ 14 ] Mr.

Slaney has shown nothing to indicate a sentence of 10 months is disproportionate or excessive in the circumstances. He argues that more than doubling his sentence of 3 months for his prior offence shows the sentence is too harsh. But considering his record, his intentional breach of probation and his deliberate driving while knowing he was disqualified, a sentence of 7 months more than he received the last time is not excessive. Should he commit a similar offence in future, he can expect a sentence considerably in excess of this.

The fact that other offenders might have received lower sentences for fewer charges does not warrant this Court intervening. Sentencing is an individualized process and courts look at the circumstances of the offender as well as the offence. [ 15 ] Although his statements at trial and in the early part of his articulate arguments in this Court reveal an apparent belief that his only offence was in getting caught (he stated, for example, “… for me to get up and drive a car every day I got to get lucky every day, the police only got to get lucky only once”) Mr.

Slaney ultimately indicated he recognized what he has done was wrong. He still attempted to justify his conduct as necessary to permit him to feed his children and help out his grandmother who raised him and needed money. But a glimmer of remorse did appear from his submissions. Also, in his early thirties, he is still a candidate for rehabilitation. The 10-month sentence properly reflects these considerations and this Court cannot say it was excessive or disproportionate.

Summary and Disposition [ 16 ] In

summary: (

i) Leave to appeal is granted. (ii) This Court will not interfere with the Crown’s discretion to go by indictment where no flagrant impropriety in the exercise of the discretion has been shown. (iii) Mr. Slaney has shown nothing to support his allegation of reasonable apprehension of bias. (iv) The trial judge erred in not providing reasons for refusing to grant enhanced credit for pre-sentence custody but Mr. Slaney is not entitled to enhanced credit consideration since he was arrested while on a recognizance from a prior offence. (

v) The 10-month sentence less 30 days credit for pre-sentence custody is appropriate in the circumstances. (vi) The appeal is dismissed. __________________________________ L. D. Barry J.A. I Concur: __________________________________ K. J. Mercer J.A. I Concur: __________________________________ M. F. Harrington J.A.