R v Grewal, 2019 MBCA 108

Citation: R v Grewal, 2019 MBCA 108 Date: 20191023 Docket: AR19-30-09341 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) T. L. Mariash ) for the Applicant ) Respondent ) A. C. Bergen ) for the Respondent - and - ) ) Chambers motion heard: RAJDEEP SINGH GREWAL ) September 26, 2019 ) ) Decision pronounced: (Accused) Applicant ) October 23, 2019 MICHEL A.

MONNIN JA [ 1 ] The accused applies for leave to appeal sentence and, if leave is granted, for judicial interim release pending appeal. [ 2 ] The accused pleaded guilty to three counts of armed robbery, one count of assault and one count of personating a police officer.

All of the offences occurred within a four-day period and were committed to fuel the accused’s addiction to methamphetamine. [ 3 ] The accused was sentenced to 30 months’ incarceration concurrent for two of the robberies, lesser concurrent sentences for the balance of the charges, less a credit of 12 months’ pre-sentence custody and three years of supervised probation. [ 4 ] At the sentencing hearing, the Crown argued that a six-year concurrent sentence would be appropriate.

The accused had sought a sentence of time served followed by a maximum of three years’ supervised probation. [ 5 ] After his arrest, the accused spent eight months in custody before being released on bail to the Behavioural Health Foundation (BHF), where he did well. Since the time of his arrest, whether in custody or in the care of the BHF, the accused underwent regular therapy and counselling with Dr.

Lawrence Ellerby and Forensic Psychological Services. [ 6 ] In order to be granted leave to appeal his sentence, the accused must demonstrate that he has an arguable case, that the sentence was demonstrably unfit or that it was arrived at as a result of an error in principle.

Specifically, he must show that there is an arguable case, that the sentencing judge committed an error in principle, failed to consider a relevant factor, overemphasised one or more relevant factors, or imposed an unfit sentence (being one outside of an acceptable range). [ 7 ] An arguable case is one with some merit or realistic chance of success. The determination of whether there is an arguable case must be made bearing in mind the highly deferential standard of review applicable on sentence appeals. [ 8 ] The sentencing judge summarised the accused’s position on sentencing in the following words: Mr.

Mariash has taken the position that I can make a finding of exceptional circumstances, but the main thrust of his argument is that I should depart from the generally accepted range of two to four years for something in this matter. That this is merited due to the great strides that this offender has taken, owing to the particular nature of his life and the mitigating factors surrounding it.

That rehabilitation should supplant what is generally accepted to be general and specific deterrence in this matter and that I should use my discretion that has been given to me to depart from this generally accepted range of two to four years and impose a sentence outside of this range, which would specifically be that of time in custody of approximately one year, as well as three years’ probation going forward.

[9] On his appeal, the accused basically raises as grounds of appeal the very same grounds that he argued before thesentencing judge, namely that the sentencing judge erred in failing to find that there existed exceptional circumstances and in failing tofind that the accused had failed to prove his rehabilitation.

He also appears to question that the robberies which he pleaded to wouldnormally attract a sentence in the two to four-year range. [10] The sentencing judge stated the following with respect to the accused’s rehabilitation: This is not to say anything poor or improper about [the accused], but it’s too early and too preliminary a stage to say what we have whatMr. Mariash has quoted as proven rehabilitation, which should apply to [the accused].

He is certainly making great progress, but he hasnot made progress enough and out in the community away from the [BHF] to say with absolute clarity that we can have significant andfar-reaching confidence that no other difficulties will involve [the accused] in the criminal framework again. [11] In dealing with the matter of exceptional circumstances, the sentencing judge said: I look, firstly, at whether exceptional circumstances here exist.

While I have freely acknowledged that [the accused] has made significantefforts in this matter, I must unfortunately conclude that they do not nearly arise to the level of exceptional -- pardon me, that they do notnearly arise to the level, which can be seen to be exceptional circumstances. While this individual has, as I’ve said, made great efforts in seeking treatment and applying that treatment specifically to his life, it is tobe something he should do regardless, but I do give him significant credit for.

However, it does not meet the very high standard that isrequired to impose an exceptional circumstances exception. [12] As to the appropriate range of sentence for offences which the accused has pleaded to, the sentencing judge stated: The next matter I turn to is whether or not I should depart from the generally accepted range of two to four years for a situation such asthis.

Again, as I turn to an analysis of the aggravating and mitigating features in this matter, as well as all of the features in this matter, Iam unfortunately of the view that I cannot depart from the two to four-year appropriate range of sentence that has been properlyarticulated by the Manitoba Court of Appeal in this matter. [13] The accused argues that there is uncertainty in the law because of this Court’s decision in R v Dalkeith-Mackie, 2018MBCA 118, where the majority found that exceptional circumstances did not exist.

The accused argues that this decision is at odds withthe decisions in R v Tran (A), 2015 MBCA 120; and R v Burnett, 2017 MBCA 122, and that the discrepancy between these decisionsneeds to be clarified. [14] I am not persuaded that the majority in Dalkeith-Mackie altered the law with respect to exceptional circumstances. Inthat case, leMaistre JA related what had been previously stated with respect to exceptional circumstances.

She wrote (at paras 23-24): In cases involving exceptional circumstances, sentencing judges may impose a community-based sentence for an offence that ordinarilyattracts a lengthy period of incarceration in order to emphasise the principle of rehabilitation, rather than the principles of deterrence anddenunciation (see R v Burnett, 2017 MBCA 122 at para 27). However, a finding of exceptional circumstances is not required in order toreduce a sentence below a starting point or sentencing range (see Lacasse [R v Lacasse, 2015 SCC 64] at paras 57-58).

This wouldunduly limit the “exercise of judicial discretion to impose an individualized sentence in light of the circumstances and the relevantsentencing principles and objectives” (R v Sass; R v Zammit, 2018 MBCA 46 at para 5; see also Burnett at paras 9-10). As explained in Burnett (at para 28): Exceptional circumstances can arise from the way in which an offence is committed or from the circumstances of the offender or acombination thereof (see R v Gutoski, (MB CA), 1990 CarswellMan 1 at para 12 (CA); and Scanlon (R v Scanlon, (MB CA), 1995 CarswellMan 332 (CA)) at para 13).

A sentencing judge’s assessment of whether there areexceptional circumstances is a holistic exercise based on an evaluation of the totality of the circumstances and all of the relevantsentencing objectives and principles (see Tran (R v Tran (A), 2015 MBCA 120) at para 20). Ensuring the overall proportionality of asentence when considering if an offender has demonstrated exceptional circumstances is important because, if a sentence does notreconcile in a principled fashion the interests of the individual and parity, it cannot be proportional (see Lacasse at para 53).

[ 15 ] The majority then went on to find that the circumstances of that accused did not qualify as exceptional circumstances and found that the sentencing judge had erred when he had so concluded. In my view, the circumstances of the accused in this case are far from equating those of the accused in Dalkeith-Mackie and, consequently, I would be hard-pressed to accept that a panel of this Court would find that there exist exceptional circumstances in the present case. [ 16 ] I am not persuaded by the accused’s argument.

He is, in my view, failing to differentiate between the parameters of a finding of exceptional circumstances and the application of those parameters in any given case, such as his. [ 17 ] In R v Barker , 2019 MBCA 86 , also an application for leave to appeal and judicial interim release, Pfuetzner JA wrote (at para 9): A finding relating to exceptional circumstances is entitled to “great deference” on appeal ( R v Burnett , 2017 MBCA 122 at para 31 ).

In light of this and the fact that the sentencing judge carefully applied the principles relating to exceptional circumstances recently described by this Court in Burnett and in R v McIvor , 2019 MBCA 34 , there is no realistic chance that a panel of this Court would interfere with the sentencing judge’s finding. [ 18 ] I adopt this statement by Pfuetzner JA as being applicable to this case. [ 19 ] As to the matter of what is an acceptable range for the offence which the accused has pleaded to, the law is clear and was properly articulated by the sentencing judge. [ 20 ] As to the whole of the accused’s proposed grounds of appeal, I have not been persuaded that he has an arguable case, that the sentence imposed was demonstrably unfit or that it was arrived at as a result of an error in principle. [ 21 ] Accordingly, I deny leave to appeal the sentence imposed. [ 22 ] It therefore follows that the application for judicial interim release is moot.

JA