R. v. Allen (J.R.), 2015 BCCA 479

• Judge: Saunders, Kirkpatrick and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 06, 2015
• Jurisdiction: British Columbia
• Citations: 2015 BCCA 479;(2015), 381 B.C.A.C. 19 (CA)

R. v. Allen (J.R.) (2015), 381 B.C.A.C. 19 (CA);

    659 W.A.C. 19

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. JA.038

Regina (respondent) v. Jeremy Robert Allen (appellant)

(CA43055; 2015 BCCA 479)

Indexed As: R. v. Allen (J.R.)

British Columbia Court of Appeal

Saunders, Kirkpatrick and Garson, JJ.A.

November 10, 2015.

Summary:

The ending of a domestic relationship gave rise to two recognizances which required Allen to have no contact with the complainant. Allen was found guilty of two counts of breach of recognizance. The counts concerned the same behaviour. The judge entered a conditional judicial stay of proceedings on one count based on R. v. Kineapple. Allen was sentenced to 89 days, being an effective sentence of 140 days' incarceration less 51 days' credit for pretrial custody calculated on a 1:1 basis. Allen applied for leave to appeal sentence and if leave was granted, appealed from his sentence. Allen contended that the sentence was excessive and disproportionate considering the nature of the offence, his circumstances and the principles of sentencing. Further, he alleged that the judge erred in law in denying him enhanced credit of 1.5:1 for pretrial custody.

The British Columbia Court of Appeal held that the sentence imposed was entirely fit. The sentence was imposed for a series of breaches that amounted to, as the judge said, a barrage of communications. The court saw no error in principle, no misapplication of the notions of parity or proportionality. However, the court held that the basis expressed by the trial judge for denying enhanced credit for pretrial custody could not be sustained. The judge had declined to give more than one 1:1 credit, saying that Allen demonstrated bad conduct disentitling him to enhanced credit by breaching the terms of his recognizance. The bad conduct referred to was the very conduct that made up the offence requiring the sentence. To both sentence Allen for the offence of breaching his recognizance and consider his actions to be bad conduct disentitling him from enhanced credit, was to double count. Allen had to be credited with a further 26 days, thereby giving him credit for 77 days for pre-sentence custody. Accordingly, the court granted leave to appeal sentence and reduced the sentence from 89 days to 63 days.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - See paragraph 17.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - See paragraphs 19 to 22.

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - See paragraphs 1 to 25.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 1].

R. v. Summers (S.) (2014), 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 2].

R. v. Bates (D.R.) (2000), 134 O.A.C. 156; 146 C.C.C.(3d) 321 (C.A.), refd to. [para. 8].

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; 46 C.R.(4th) 269; 105 C.C.C.(3d) 327, refd to. [para. 11].

R. v. Johnson (D.K.) (1996), 84 B.C.A.C. 261; 137 W.A.C. 261; 112 C.C.C.(3d) 225 (C.A.), refd to. [para. 11].

R. v. Allen (W.R.) (2012), 327 B.C.A.C. 236; 556 W.A.C. 236; 2012 BCCA 377, refd to. [para. 11].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 11].

R. v. Peynado (B.) (2011), 314 B.C.A.C. 156; 534 W.A.C. 156; 2011 BCCA 524, refd to. [para. 12].

R. v. Bilotta (A.J.), [2015] B.C.T.C. Uned. 181; 2015 BCSC 181, refd to. [para. 16].

R. v. Rush (R.T.) (2010), 288 B.C.A.C. 203; 488 W.A.C. 203; 2010 BCCA 293, refd to. [para. 17].

R. v. T.E.C. (2015), 366 B.C.A.C. 288; 629 W.A.C. 288; 2015 BCCA 43, refd to. [para. 17].

R. v. R.S.G. (2014), 352 B.C.A.C. 240; 601 W.A.C. 240; 2014 BCCA 88, refd to. [para. 17].

R. v. Cooper (D.W.) (2009), 270 B.C.A.C. 247; 454 W.A.C. 247; 2009 BCCA 208, refd to. [para. 17].

R. v. Dwyer (T.M.) (1996), 81 B.C.A.C. 129; 132 W.A.C. 129 (C.A.), refd to. [para. 17].

R. v. MacDonald (B.W.) (2012), 320 B.C.A.C. 51; 543 W.A.C. 51; 2012 BCCA 155, refd to. [para. 17].

R. v. Kazakoff (B.F.), [2014] B.C.A.C. Uned. 61; 2014 BCCA 422, refd to. [para. 20].

R. v. Vinepal (I.S.) (2015), 375 B.C.A.C. 189; 644 W.A.C. 189; 2015 BCCA 349, refd to. [para. 20].

Counsel:

M. Stephenson, for the appellant;

E. Campbell, for the respondent.

This appeal was heard on November 6, 2015, at Vancouver, B.C., before Saunders, Kirkpatrick and Garson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered orally by Saunders, J.A., on November 10, 2015.