Criminal Law – Sentencing – Appeal
Criminal Law – Sentencing – Break and Enter and Commit Sexual Assault
Criminal Law – Sentencing – Joint Submission
The appellant pled guilty to four of seven charges that arose on the same day. The Crown stayed the remaining three charges. The appellant forced his way into the complainant’s home wearing a black face mask and latex gloves and holding a handgun. The handgun was pointed at the complainant’s head and at her 11-year-old son’s head. The child returned to his bedroom when the handgun was pointed at him. The appellant required the complainant to perform sexual acts in the kitchen and in her bedroom. The appellant was not charged until a year after the offences when police were able to match his DNA to the DNA found on the complainant. During sentencing submissions, the Crown described the appellant’s moral blameworthiness and gravity of the offence as extremely high. There were many aggravating factors. The Crown recommended a global sentence of ten years. The Crown recommended that eight of the ten years be allocated to the break and enter and commit sexual assault. The sentencing judge concluded the ten-year sentence recommended as a joint submission by the parties was a fit sentence in the circumstances. The allocation was as follows: break and enter a dwelling house and commit sexual assault – 8 years; pointing a firearm at the child – one year consecutive; disguise with intent to commit an indictable offence – one year concurrent; and using a firearm while committing an indictable offence – one year consecutive. The issue was whether the sentencing judge erred in law when he accepted the joint submission on sentence. The appellant argued that the appeal court should intervene because he was misled by trial counsel with respect to the particulars of parole eligibility and because the ten-year sentence was unfit.
HELD: The appellant said that his legal counsel told him that since he had no prior criminal record, one-third of his prison sentence would be automatically deducted. He also said that he was told he could apply for day parole after serving one-sixth of his sentence. The appellant will have to wait for almost three years before he can even apply for day parole. When the Crown indicated that they would take steps to reinstate the stayed charges and proceed to a new sentencing if the appeal were allowed, the appellant indicated that he knew that the sentence was a joint submission, and did not assert any error on the part of the sentencing judge in accepting it. The appeal court was then left with a request to alter the portion of the global sentence that pertained to the s. 348(1)(b) offence. The argument did not succeed because: a) the appellant did not apply to adduce fresh evidence regarding what his counsel told him about parole eligibility; and b) sentencing judges should not lightly reject a joint submission. Joint submissions should only be departed from if their acceptance would bring the administration of justice into disrepute or it would be contrary to the public interest. The sentence would not bring the administration of justice into disrepute, nor was it contrary to the public interest. The sentence that the appellant received for the break and enter offence was within the range and it took into account the appellant’s personal circumstances. The sentence was not demonstrably unfit. The sentencing judge did not err in accepting the joint submission. Leave to appeal was granted, but the appeal was dismissed.