R. v. Soldat, 2012 MBCA 39

Citation: R. v. Soldat, 2012 MBCA 39 Date: 20120503 Docket: AR 11-30-07568 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN : ) C. A. Vanderhooft HER MAJESTY THE QUEEN ) for the Appellant ) Appellant ) ) L. M.

Van Dongen - and - ) for the Respondent ) ) Appeal heard: GENE MICHAEL DUMAS SOLDAT ) November 1, 2011 ) (Accused) Respondent ) Judgment delivered: ) May 3, 2012 MONNIN J.A. 1 The Crown appeals from a conditional sentence of two years less a day imposed after a guilty plea to one count of possession of goods valued in excess of $5,000 obtained by crime, in this case a truck.

Background 2 A discussion of this particular accused’s background leading up to the sentence imposed by the Provincial Court is important to appreciate the arguments of the Crown and defence. 3 Although only 23 years old at the time of sentencing, to say that the accused has an extensive criminal record is an understatement. At the time of the offence, he had been on parole for a few months after serving a five-year sentence for various theft and driving offences.

This conviction, to which he pleaded guilty, was his 77th motor vehicle related conviction since 2002. 4 On March 10, 2010, he was released on parole after serving part of a five-year sentence for motor vehicle related offences. On a previous appeal, this court had this to say about this particular accused: The sentencing judge took these mitigating factors into account. We acknowledge that this sentence is a heavy one for a youthful offender serving his first adult sentence. However, this is a unique situation.

From the age of 12 to 17, this offender accumulated 81 prior convictions, 69 of which related to motor vehicles. He has had virtually every type of disposition available under the Youth Criminal Justice Act , S.C. 2002, c. 1, including five periods of supervised probation. His pre-sentence report confirms, unfortunately, that his entire identity revolves around the theft of motor vehicles, which brings him status and recognition among his fellow gang members.

His attempts to evade capture have led to several dangerous police chases and the offences in question were committed when he was at large as a sentenced prisoner for related offences. His behaviour is unacceptable and dangerous. Despite the accused’s youth,

the sentence imposed must still be proportionate to the gravity of the offences committed. 5 The facts concerning this particular appeal are that between July 4 and 5, 2010, the accused came into possession of astolen truck. On July 8, 2010, he drove that vehicle to a local supermarket. The police came upon the stolen vehicle. When the accusedexited the store, he saw the police and left the area. He was arrested approximately one week later. The matter was scheduled for courton December 20, 2010, but, as several witnesses did not attend, the trial was adjourned.

Originally charged for stealing the motorvehicle and other offences, he pled guilty to the lesser count of possessing goods obtained by crime and the other charges were stayed. At the sentencing hearing on April 27, 2011, the Crown sought a sentence of two years while the accused proposed a sentence of time incustody (roughly two and one-half months) and probation. At the end of the sentencing submissions of both counsel, the sentencingjudge on his own raised the possibility of a conditional sentence.

He appeared to be seeking input from the accused’s counsel as towhether the accused would abide by the strict conditions of that type of sentence. He stated: And so that rather than, than doing it automatically off the top I offer to individuals the, the avoidance of going to jail or the fact of justspending whatever the set time would be and not having conditions that they have to meet from now for the next two years. He advised counsel that it’s an option that he is considering.

Prophetically, he stated: .… I am concerned with, with his record, that we are looking at if it’s an automatic breach within a matter of a month or two, then he’scoming back and he’s looking at two years in jail …. 6 After obtaining a response from the accused’s counsel that he would prefer a conditional sentence, the sentencingjudge then proceeded to impose one. 7 Just over a month later, the accused breached his conditional sentence by being away from his home outside theterms of his curfew.

He was sighted by police and followed back to his home approximately 40 minutes beyond the time that he wassupposed to have returned. He was brought back before the sentencing judge who had imposed the conditional sentence on a breach ofthe conditional sentence. The sentencing judge declined to terminate the conditional sentence, but instead suspended it for eight months. Standard of Review 8 There is no dispute as to the standard of review on this sentence appeal. Deference must be shown to the sentencingjudge’s decision.

Absent an error in principle or failure to consider a relevant sentencing principle, we should only intervene if thesentence is demonstrably unfit. See R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 90; and R. v. Ruizfuentes(H.S.), 2010 MBCA 90 at para. 7, 258 Man.R. (2d) 220. Crown’s Position 9 The Crown argues that the sentencing judge reached his conclusion with respect to the imposition of a conditionalsentence in error.

It argues that he commenced from a starting point that he wished to impose a sentence of 12 months’ imprisonment,but offered the accused the option of a conditional sentence in which case the sentence would be increased to two years less a day. Inaddition, he failed to perform an assessment of the risk posed by the accused if permitted to serve the sentence in the community, whichis a requirement for the imposition of any conditional sentence. In its submission, the accused, with his lengthy list of criminalconvictions, is not a suitable candidate for a conditional sentence.

Accordingly, it argues that the sentencing judge proceeded in afashion that amounted to an error in principle and led to a sentence that was unfit. Accused’s Position 10 The accused’s argument is that the sentencing judge was entitled to consider the option of a conditional sentence asopposed to a term of imprisonment of 12 months, which he had articulated. He argues that the sentencing judge’s inquiries of defencecounsel were only to ascertain the accused’s willingness and ability to comply with a conditional sentence if imposed.

It was not adelegation of that decision to the accused as argued by the Crown. 11 As to the position of the Crown that no risk assessment was undertaken, the defence points to this court’s decision in R.v. Allison (D.C.), 2005 MBCA 141, 201 Man.R. (2d) 109, to the effect that a sentencing judge is not presumed to ignore facts simplybecause they are not mentioned in the reasons. As well, in R. v. Olotu (T.A.), 2004 MBCA 146, 187 Man.R. (2d) 232, the court found anassessment of the risk by looking at the submissions of counsel along with the questions of the court.

In this case, counsel argues thatcomments by the sentencing judge and his questions of defence counsel indicate that the assessment was performed by the sentencingjudge, although not explicitly referred to by him in his reasons.

Analysis Law on Conditional Sentences 12 In R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61 , the court discussed the requirements of s. 742.1 of the Criminal Code governing the imposition of conditional sentences.

In that case, the court reviewed s. 742.1 and set out the four criteria that must be considered before deciding to impose a conditional sentence, namely (at para. 46): (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community ; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. [emphasis added] 13 The importance of the third criterion, an assessment of the risk, was considered by this court in R. v.

Eckert (J.J) , 2006 MBCA 6 , 201 Man.R. (2d) 175 , where Steel J.A., speaking for the court, stated (at para. 6): Before imposing a conditional sentence, the judge must weigh the risk of the offender re-offending and the gravity of the harm that might result. He must decide that the accused poses an acceptable risk to the community which can be managed by the imposition of appropriate conditions. 14 I agree with the Crown’s position that there was no proper risk assessment. A proper assessment would have led to the conclusion that this individual was at great risk to reoffend if living in the community.

I also agree with the Crown that this accused is not an appropriate candidate for a conditional sentence, especially when he was convicted of a crime occurring while he was on parole and which is of a similar nature to that for which he was last sentenced to five years in jail. I recognize that there is no evidence that he stole this truck or engaged in joyriding, as was the case in previous offences.

Nevertheless, he was found in possession of a stolen vehicle, an offence similar to that for which he had been arrested numerous times. 15 Given that the sentencing judge was in error in failing to perform an appropriate risk assessment, deference is not owed to the sentence that he has imposed.

I am of the view that, given the accused’s past record and the circumstances surrounding this offence, at the sentencing on April 27, 2011, a fit and proper sentence at that date would have been a sentence of 18 months of incarceration, with credit for pre-sentence custody of two and a half months, leaving a further term of incarceration of 15 and a half months. 16 Since the accused had served two months of his conditional sentence prior to the conditional sentence being suspended on June 22, 2011 for a period of eight months, and two months since that time, he should be given a credit of 12 months.

This would leave him a further three and a half months to serve as of April 27, 2012. 17 This decision was not released until May 3, 2012, due to illness of counsel. As a result, the accused continued to serve his conditional sentence and should be given credit for that extra week. 18 For these reasons, I would grant leave to appeal the sentence and allow the appeal. J.A. I agree: J.A.

I agree: J.A.