R. v. Beardy, 2014 MBCA 23

Citation: R. v. Beardy, 2014 MBCA 23 Date: 20140218 Docket: AR 13-30-07943 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel BETWEEN: HER MAJESTY THE QUEEN ) J. L. Ostapiw ) for the Appellant Respondent ) ) N. M.

Cutler- and - ) for the Respondent ) AWASIS JOHN BEARDY ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) February 10, 2014 ) ) Written reasons: ) February 18, 2014 CHARTIER C.J.M. [1] Leave to appeal having been granted earlier, we allowed the sentence appeal and varied the custodial part of theaccused’s sentence from six years to four years’ imprisonment, with reasons to follow. These are those reasons. [2] The accused pled guilty to attempt robbery and aggravated assault. The facts are troubling.

The accused approacheda stranger at a gas station demanding money and, without giving him a chance to respond, stabbed him in the abdomen causing athree-centimetre laceration. When that person began running away, the accused chased him and stabbed him again, this time causing alaceration of the liver. The victim had surgery and was hospitalised for two weeks. At the time of the brutal attack, the accused washigh on a cocktail of prescription drugs, cocaine and alcohol. [3] The Crown sought a four-year sentence, while counsel for the accused recommended a two and one-half yearsentence.

The sentencing judge imposed a six-year sentence less credit for the five months of pre-sentence custody on a 1:1 basis. [4] The accused appealed. He argued that the sentencing judge imposed a sentence that was harsh and excessive havingregard to the circumstances of the offence and the circumstances of the offender. He pointed out that the sentencing judge imposed asentence that was 50 per cent over the Crown recommendation. He also submitted that the sentencing judge failed to properly take intoaccount the Gladue factors (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688).

The accused asked, on appeal, to reduce thesentence to, at a maximum, one of no more than the four years recommended by the Crown in first instance. [5] We agree with the accused that the sentence imposed is demonstrably unfit.

We are also of the view that thesentencing judge erred by failing to inform counsel of his concerns with respect to the range suggested by the Crown and by notproviding counsel the opportunity to make further submissions to address his concerns. [6] For a guilty plea to be valid, an accused must understand the nature and consequences of the plea prior to entering it(see s. 606(1.1)(b)(ii) of the Criminal Code). This includes an understanding of the Crown’s position on sentence. Typically, theCrown’s position will represent the upper limit of any sentence an accused can expect to receive from the sentencing judge.

While theCrown’s position cannot bind the discretion of the sentencing judge, judges should be slow to go over the recommended upper limit ofthe sentence or “jump” the sentence without first giving counsel an opportunity to address any concerns. In the same way that asentencing judge, who is thinking of “jumping” a joint submission, should inform counsel of his/her concerns and provide them with anopportunity to present further submissions or authority, so should a judge who is contemplating sentencing an accused to a sentence thatis much harsher than what the Crown is recommending (see R. v.

Hagen, 2011 ONCA 749 at paras. 4-5 (QL); R. v. Menary (W.), 2012ONCA 706 at paras. 3-4, 298 O.A.C. 108; and R. v. Poorsarwar, 2012 ONCA 799 at para. 4 (QL)). It is the fair thing to do.

[ 7 ] In this case, the sentencing judge “jumped” the Crown’s recommendation by a significant amount without proper inquiry or reasons. This was an error in principle. [ 8 ] Notwithstanding the “jumping” error, we are also of the view that the sentence imposed was demonstrably unfit because the sentencing judge failed to properly consider the accused’s age (19 years of age at the time of the incident), his early guilty plea, the absence of a criminal record, his expression of remorse, and his prospects for rehabilitation.

On this last point, the sentencing judge acknowledged, after reading the pre-sentence report, that the accused “may in fact be able to move beyond where we find him today.” [ 9 ] In our view, the fit and appropriate sentence in these circumstances was the four-year sentence recommended by the Crown. As leave to appeal had been previously granted, we allowed the sentence appeal and varied the custodial part of the accused’s sentence from six years to four years’ imprisonment, less the credit previously given for his time in pre-sentence custody. C.J.M. I agree: J.A. I agree: J.A.