R. v. Wolonciej, 2011 MBCA 91

Citation: R. v. Wolonciej, 2011 MBCA 91 Date: 20111122 Docket: AR 11-30-07542 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton BETWEEN : HER MAJESTY THE QUEEN ) T. L. Mariash ) for the Appellant Respondent ) ) C. A.

Vanderhooft ) for the Respondent - and - ) ) Appeal heard: ) September 20, 2011 WILLIAM EDWARD WOLONCIEJ ) ) Judgment delivered: (Accused) Appellant ) November 22, 2011 MONNIN and STEEL JJ.A. 1 This is an appeal from a sentence of two years’ incarceration, less time served, calculated on a one-to-one credit basis, plus three years supervised probation following a guilty plea to a charge of aggravated assault. 2 The accused alleges that the sentencing judge erred in principle when he failed to follow a joint recommendation that he be sentenced to a period of one year in jail, less time served on a one-to-one credit basis. 3 The accused argues that the judge failed to follow the procedure for dealing with a joint recommendation that this court adopted in R. v.

Sinclair (E.J.) , 2004 MBCA 48 , 184 Man.R. (2d) 1 , which was the following (at para. 17): Thus, the law with respect to joint submissions may be summarized as follows:

(1) While the discretion ultimately lies with the court, the proposed sentence should be given very serious consideration.

(2) The sentencing judge should depart from the joint submission only when there are cogent reasons for doing so. Cogent reasons may include, among others, where the sentence is unfit, unreasonable, would bring the administration of justice into disrepute or be contrary to the public interest.

(3) In determining whether cogent reasons exist (i.e., in weighing the adequacy of the proposed joint submission), the sentencing judge must take into account all the circumstances underlying the joint submission. Where the case falls on the continuum among plea bargain, evidentiary considerations, systemic pressures and joint submissions will affect, perhaps significantly, the weight given the joint submission by the sentencing judge.

(4) The sentencing judge should inform counsel during the sentencing hearing if the court is considering departing from the proposed sentence in order to allow counsel to make submissions justifying the proposal.

(5) The sentencing judge must then provide clear and cogent reasons for departing from the joint submission. Reasons for departing from the proposed sentence must be more than an opinion on the part of the sentencing judge that the sentence would not be enough. The fact

that the crime committed could reasonably attract a greater sentence is not alone reason for departing from the proposed sentence. Theproposed sentence must meet the standard described in para. 2, considering all of the principles of sentencing, such as deterrence,denunciation, aggravating and mitigating factors, and the like. 4 The assault for which the accused pled guilty was on his one-month-old son and occurred in August of 2009. At that time,although not living with his son’s mother, the accused was involved with caring for the child.

At some point the accused became angryat his son’s mother, as well as becoming frustrated by the child’s behaviour. He reacted by squeezing his son and breaking eight ribs. The assault was discovered sometime later, in September of 2009, when the mother took the child to the hospital because of the fact hewas vomiting blood. The presenting condition was found not to be related to the assault, but the investigations conducted by the medicalstaff discovered the injuries arising from the assault.

The accused was arrested and provided a statement acknowledging hisinvolvement with the child’s injuries. 5 On November 8, 2010, being the first day set for his preliminary hearing, the accused entered a guilty plea.

There hadbeen no plea bargain or agreement as to sentencing at that time, although the Crown concedes that it had informed the accused that itwould be seeking a sentence of one year in jail. 6 On March 17, 2011, being the date that submissions as to sentence were being made, the accused informed the Crown thathe would be joining it in its submission that a sentence of one year incarceration, less credit on a one-to-one basis for time served, wouldbe an appropriate sentence. 7 In making her sentencing submissions, counsel acting for the Crown advised the judge that the sentencing recommendationwas a joint one as between the Crown and the accused.

However, in the Crown’s factum and in oral argument before us, counsel for theCrown (different from Crown counsel at the sentencing) now advances the position that there was no plea bargain or agreement tojointly recommend a sentence at the time of submissions. The fact is, the Crown argues, that the accused decided to join the Crown inits recommendation that one year of incarceration was appropriate.

Consequently, the Crown further argues, the judge did not commitany error by rejecting the submissions of both the Crown and the accused. 8 In order to place the arguments into context, it is necessary to consider briefly the nature of a plea bargain and a jointrecommendation as not all plea bargains are the same or are due the same deference. This issue was dealt with by Steel J.A. when shestated in Sinclair (at paras. 13-14): There is a continuum in the spectrum of plea bargaining and joint submissions as to sentence.

In some cases, the Crown’s case has someflaw or weakness and the accused agrees to give up his or her right to a trial and to plead guilty in exchange for some consideration. Thisconsideration may take the form of a reduction in the original charge, withdrawal of other charges or an agreement to jointly recommenda more lenient sentence than would be likely after a guilty verdict at trial. Evidence always varies in strength and there is alwaysuncertainty in the trial process. In other cases, plea negotiations have become accepted as a means to expedite the administration ofcriminal justice.

That is the case here, where the accused’s decision to forego his right to a trial must be considered within the context ofa backlog in trial dates and the months already spent in pre-trial detention. The clearer the quid pro quo, the more weight should be givenan appropriate joint submission by the sentencing judge. See R. v. Broekaert (D.D.) (2003), 2003 MBCA 10 , 170 Man.R.(2d) 229; 285 W.A.C. 229; 2003 MBCA 10, at para. 29, and Booh [2003 MBCA 16, 170 Man.R. (2d) 249], at para. 11.

Recognizing that cases fall at various places in the continuum, the essence of the plea bargain or joint submission should be placed onthe record in open court. The judge must have a solid factual basis on which to make an independent, reasoned decision.

If a trial judge isnot given or fails to inquire into the circumstances underlying a joint sentencing submission, then he or she will be hard pressed todetermine whether there is good cause to reject that joint submission: In my opinion, no “thorough appreciation of the relevant facts” can occur in the absence of a careful and diligent inquiry of counsel as tothe circumstances underlying a joint sentencing submission. (R. v.

G.W.C. [2000 ABCA 333, 277 A.R. 20], at para. 20, per Berger, J.A.) If the joint submission is as a result of, for example, an evidentiary gap in the Crown’s case or the absence of an essential witness, this isinformation that should be provided to the court by counsel, and particularly Crown counsel. 9 In the case at bar, notwithstanding what Crown counsel advanced in her sentencing submissions, we are satisfied that thetrue nature of the agreement between the Crown and the accused is more aptly described by the Crown’s submissions before us.

TheCrown might have had some difficulties with advancing its case, but no more so than in most cases. The accused’s guilty plea was notbrought about as a result of any negotiation or bargain between the accused and the Crown. At best, the accused made a decision on hisown when informed as to what type of sentence the Crown would be seeking and the Crown did not make any sentencing offers based ona plea. In fact, as previously stated, the Crown was not informed until the day of the sentence submissions that the accused would be

recommending the same sentence as the Crown. 10 Although we believe that this was still a joint recommendation governed by the Sinclair procedure, it ranked low on thecontinuum and, consequently, the judge did not have to give it the same weight as he might have given a plea bargain or a jointsentencing recommendation where there was a clearer quid pro quo. 11 It is also clear from the transcript that both the Crown and the accused were aware that the judge was considering departingfrom the proposed sentence and had the opportunity to make further submissions or additional arguments if they so wished.

During theCrown’s submissions as to why it was recommending a sentence of one year, the judge interjected and stated: “Maybe you can explainthat to me because I’m going to obviously make it clear I don’t agree with the joint recommendation.” 12 The accused submits further that the sentencing judge did not give clear and cogent reasons for departing from the jointrecommendation.

He submits that the reasons must amount to more than “an opinion on the part of the sentencing judge that thesentence would not be enough” (see Sinclair at para. 17). 13 In determining whether the judge gave clear and cogent reasons for departing from the joint recommendation, this court willexamine the transcript as a whole and not just the judge’s reasons themselves. In this case, the sentencing judge had a significant andlengthy discussion with the Crown during its submissions as to the accused’s moral culpability in relation to the case law on point.

Thejudge acknowledged that many of the cases submitted dealt with multiple assaults, but he was concerned with the accused’s moralculpability and anger in this case.

The judge stated: “... [Y]ou’re dealing with individuals who, out of anger, attack an infant, who isdefenceless and who is at the early stages of development that are at most risk ....” And again, in his reasons for sentence: “There is noquestion, as it relates to M[a]cDonald [2009 MBCA 36, 236 Man.R. (2d) 239], that there is a difference in circumstances in thatM[a]cDonald was several incidents that occurred with regards to injuries to babes, as opposed to the one, however, there [was] no proofof anger in M[a]cDonald where here this was clearly the cause of the injuries to the baby.” 14 Given the low level of deference owed by the sentencing judge to this joint recommendation, we believe his reasons forsentence, along with the discussion between the court and counsel during submissions, are sufficient to satisfy the requirement for clearand cogent reasons. 15 Thus, in our view, there was no error committed by the judge when he did not accept the recommendations of counsel.

Itremains to be seen, however, if the sentence imposed was fit and proper. 16 In R. v. MacDonald (K.), 2009 MBCA 36, 236 Man.R. (2d) 239, a case before this court dealing with an assault on a child bya parent, Scott C.J.M. accepted and described the categories of child abuse as follows (at para. 14): In R. v. Marks (K.J.) (1994), (NL CA), 121 Nfld. & P.E.I.R. 200; 377 A.P.R. 200; 91 C.C.C. (3d) 421 (Nfld. C.A.),and R. v. McNeeley, [1995] O.J. No. 4371 (Gen.

Div.), it was held that there are three categories of child abuse: (1) cases involving the application of force with the expectation of causing injury or indifference to it; (2) cases involving the application of force where a parent was immature and unskilled and acting out of emotional upset, frustration ortemper and did not fully appreciate the serious injuries which might result; and (3) cases involving diminished responsibility through mental disorder where the abnormal mental condition of the accused requires thetreatment of the offender to be given priority over the principles of general and individual deterrence.

This analysis provides a useful guide, but its application cannot, of course, displace the sentencing principles by which judges are bound,including that which requires a sentence to take into account the gravity of the offence. 17 In MacDonald, the majority found that the nature of the assault was in the first category and substituted a sentence of threeyears for the 18-month conditional sentence that had originally been imposed. 18 In our view, the judge misinterpreted the relevant case law and in particular, the MacDonald case.

Although he stated thatthis case came within the second category of MacDonald, his entire analysis and emphasis on the accused’s anger and moral culpabilityindicate that the accused’s actions fall either within the first category or are a combination of the first and second category, which is atthe higher end of moral blameworthiness. 19 The accused in this case is a first offender and has been diagnosed with Attention Deficit Disorder. The case involves onevictim and one incident of assault. MacDonald imposed a sentence of three years in a case involving multiple victims and multipleassaults.

Although the judge was entitled to reject the joint recommendation of one year, in our view he was unduly harsh in imposingone of two years. We believe 18 months is a more appropriate sentence. 20 We might be accused of tinkering in substituting this sentence for one of two years as imposed, but when considering a

sentence of two years, a 25 per cent difference is not, in our view, inconsequential or minimal. 21 Accordingly, we would allow the appeal and substitute a sentence of 18 months, less credit for time served on a one-to-one basis, in place of the sentence which was imposed. The probationary period remains unchanged. J.A. J.A. I agree: J.A.