R. v. Abel (M.D.), (2011) 510 A.R. 136

JudgeRitter, O'Brien and Charbonneau, JJ.A.
CourtCourt of Appeal (Northwest Territories)
Case DateJune 14, 2011
JurisdictionNorthwest Territories
Citations(2011), 510 A.R. 136

R. v. Abel (M.D.) (2011), 510 A.R. 136; 527 W.A.C. 136 (NWTCA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JL.013

Michael David Abel (appellant) v. Her Majesty the Queen (respondent)

(A-1-AP-2011000003; 2011 NWTCA 4)

Indexed As: R. v. Abel (M.D.)

Northwest Territories Court of Appeal

Ritter, O'Brien and Charbonneau, JJ.A.

June 27, 2011.

Summary:

The accused pleaded guilty to theft under $5,000 and assault. He was also convicted after a trial on a charge of uttering threats. He was sentenced to eight months' imprisonment for both the assault and uttering threats and two months for the theft, all to be served consecutively, for a total of 18 months' imprisonment. The accused appealed the sentence.

The Northwest Territories Court of Appeal dismissed the appeal.

Criminal Law - Topic 5814

Sentencing - Sentencing procedure and rights of the accused - Right of accused to be heard - The accused pleaded guilty to theft under $5,000 and assault - He was also convicted on a charge of uttering threats - The accused had 71 prior convictions, including 16 or 17 convictions for violent offences - The Crown sought a sentence of two to three months for the assault, two months for the theft and three to four months for uttering threats - The accused sought a sentence of 60 to 90 days for both the assault and uttering threats and 30 to 45 days for the theft - The sentence judge expressed difficulty with the proposed sentences and adjourned for two days so that parties could make further submissions - When the hearing reconvened, only the accused's counsel submitted a written brief and further case authorities which dealt primarily with a fit sentence for theft - The judge explained that her concern was not with the range sought for the theft but with the two offences of violence - In response to a request for further submissions in that regard, the accused's counsel stated that the circumstances behind the assault and the threats were not as serious as some, the resulting harm was at the minimal end of the scale, and the facts did not warrant a sentence outside the ranges earlier sought - The sentencing judge concluded that the circumstances behind both the assault and threats were particularly aggravating and sentenced the accused to eight months' imprisonment for both the assault and the threats and two months' imprisonment for the theft, all to be served consecutively, for a total of 18 months - The Northwest Territories Court of Appeal agreed that when a judge proposed to give a sentence outside the ranges submitted by the parties she had to inform them of her intention and given an opportunity to respond - The judge did that here - While she initially spoke specifically of her concern about the ranges proposed for the assault conviction, she made clear during later oral submissions that her concern was with both crimes of violence - The accused's counsel at that point neither expressed surprise nor sought an adjournment - He knew the judge's concerns and had a chance to respond - The Crown had a similar opportunity - The ultimate responsibility to impose a fit sentence rested with the sentencing judge, not with counsel - There was no denial of fairness - See paragraphs 22 to 25.

Criminal Law - Topic 5849.7

Sentencing - Considerations on imposing sentence - Representations of counsel - [See Criminal Law - Topic 5814 ].

Criminal Law - Topic 5854

Sentence - Theft - The accused pleaded guilty to theft under $5,000 and assault - He was also convicted on a charge of uttering threats - On May 17, 2010, he stole several postcard prints worth approximately $100 - The prints were not recovered - On May 31, 2010, while subject to an undertaking not to attend at a store, he was found on the store's property and appeared to be under the influence of alcohol - He pointed at the store's proprietor and told him that he was a dead man - Later he went to another store and told the cashier to give him some cigarettes - He grabbed her sweater and began pushing her around the counter - The confrontation ended when another person stepped in to assist the clerk - The accused had 71 prior convictions, including 16 or 17 convictions for violent offences - The Crown sought a total sentence of seven to nine months - The accused asserted that the proper range was five to seven and half months - The sentencing judge concluded that the circumstances behind the assault were particularly aggravating because the clerk had been in a vulnerable position - Similarly, she found that the circumstances behind the threats were serious because the victim had filed a complaint with the police only two weeks earlier, alleging that the accused had stolen from his business - Additionally, he had no way of knowing if the accused would carry through with the threat - The judge indicated that the accused and others had to understand that such behaviour would not be tolerated and that there would be consequences - She sentenced the accused to eight months' imprisonment for both the assault and the threats and two months' imprisonment for the theft, all to be served consecutively, for a total of 18 months - The Northwest Territories Court of Appeal held that the judge was entitled to find that the circumstances surrounding the threats and the assault merited a sentence greater than that proposed by the Crown and the accused - The sentences were not outside the applicable range for such crimes and were not demonstrably unfit - See paragraphs 17 to 21.

Criminal Law - Topic 5861

Sentence - Assault - [See Criminal Law - Topic 5854 ].

Criminal Law - Topic 5895

Sentence - Threats - [See Criminal Law - Topic 5854 ].

Cases Noticed:

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, refd to. [para. 15].

R. v. Hood (S.V.) (2011), 505 A.R. 243; 522 W.A.C. 243; 2011 ABCA 169, refd to. [para. 23].

Counsel:

M.E. Hansen, for the appellant;

M. Lecorre, for the respondent.

This appeal was heard on June 14, 2011, at Yellowknife, Northwest Territories, by Ritter, O'Brien and Charbonneau, JJ.A., of the Northwest Territories Court of Appeal. The court filed the following memorandum of judgment on June 27, 2011.

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5 practice notes
  • R v Sidhu,
    • Canada
    • Court of Appeal (Alberta)
    • January 1, 2022
    ...sentence that the trial judge imposed was warranted in the circumstances”). [60] The Queen v. Abel, 2011 NWTCA 4, ¶ 23; 510 A.R. 136, 141 (“We agree with the appellant that when a sentencing judge proposes to give a sentence outside the ranges submitted by counsel she mus......
  • R. v. Burback (B.T.), (2012) 522 A.R. 352
    • Canada
    • Alberta Court of Appeal (Alberta)
    • February 10, 2012
    ...333, refd to. [para. 8]. R. v. Hood (S.V.) (2011), 505 A.R. 243; 522 W.A.C. 243; 2011 ABCA 169, refd to. [para. 9]. R. v. Abel (M.D.) (2011), 510 A.R. 136; 527 W.A.C. 136; 2011 NWTCA 4, refd to. [para. R. v. Beal (W.A.M.) (2011), 502 A.R. 177; 517 W.A.C. 177; 2011 ABCA 35, refd to. [para. 1......
  • R. v. Keough (J.A.), 539 WAC 236
    • Canada
    • Alberta Court of Appeal (Alberta)
    • January 12, 2012
    ...20, refd to. [para. 19]. R. v. Hood (S.V.) (2011), 505 A.R. 243; 522 W.A.C. 243; 2011 ABCA 169, refd to. [para. 20]. R. v. Abel (M.D.) (2011), 510 A.R. 136; 527 W.A.C. 136; 2011 NWTCA 4, refd to. [para. 20]. R. v. Beal (W.A.M.) (2011), 502 A.R. 177; 517 W.A.C. 177; 44 Alta. L.R.(5th) 306; 2......
  • R. v. Fead, 2017 ABCA 222
    • Canada
    • Alberta Court of Appeal (Alberta)
    • July 27, 2017
    ...though the failure to do so is not per se reviewable error: R. v Hood, 2011 ABCA 169 at paras. 14-5, 505 AR 243; R. v Abel, 2011 NWTCA 4, 510 AR 136; R. v Burback, 2012 ABCA 30, 68 Alta LR (5th) 72, 522 AR 352; R. v Scott, 2016 NLCA 16, 335 CCC (3d) 157. [22]     &#......
  • Request a trial to view additional results
5 cases
  • R v Sidhu,
    • Canada
    • Court of Appeal (Alberta)
    • January 1, 2022
    ...sentence that the trial judge imposed was warranted in the circumstances”). [60] The Queen v. Abel, 2011 NWTCA 4, ¶ 23; 510 A.R. 136, 141 (“We agree with the appellant that when a sentencing judge proposes to give a sentence outside the ranges submitted by counsel she mus......
  • R. v. Keough (J.A.), 539 WAC 236
    • Canada
    • Alberta Court of Appeal (Alberta)
    • January 12, 2012
    ...20, refd to. [para. 19]. R. v. Hood (S.V.) (2011), 505 A.R. 243; 522 W.A.C. 243; 2011 ABCA 169, refd to. [para. 20]. R. v. Abel (M.D.) (2011), 510 A.R. 136; 527 W.A.C. 136; 2011 NWTCA 4, refd to. [para. 20]. R. v. Beal (W.A.M.) (2011), 502 A.R. 177; 517 W.A.C. 177; 44 Alta. L.R.(5th) 306; 2......
  • R. v. Burback (B.T.), (2012) 522 A.R. 352
    • Canada
    • Alberta Court of Appeal (Alberta)
    • February 10, 2012
    ...333, refd to. [para. 8]. R. v. Hood (S.V.) (2011), 505 A.R. 243; 522 W.A.C. 243; 2011 ABCA 169, refd to. [para. 9]. R. v. Abel (M.D.) (2011), 510 A.R. 136; 527 W.A.C. 136; 2011 NWTCA 4, refd to. [para. R. v. Beal (W.A.M.) (2011), 502 A.R. 177; 517 W.A.C. 177; 2011 ABCA 35, refd to. [para. 1......
  • R. v. Fead, 2017 ABCA 222
    • Canada
    • Alberta Court of Appeal (Alberta)
    • July 27, 2017
    ...though the failure to do so is not per se reviewable error: R. v Hood, 2011 ABCA 169 at paras. 14-5, 505 AR 243; R. v Abel, 2011 NWTCA 4, 510 AR 136; R. v Burback, 2012 ABCA 30, 68 Alta LR (5th) 72, 522 AR 352; R. v Scott, 2016 NLCA 16, 335 CCC (3d) 157. [22]     &#......
  • Request a trial to view additional results

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