R. v. Andrade (F.), (2010) 363 N.B.R.(2d) 159 (CA)

• Judge: Robertson, Quigg and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 13, 2010
• Jurisdiction: New Brunswick
• Citations: (2010), 363 N.B.R.(2d) 159 (CA);2010 NBCA 62

R. v. Andrade (F.) (2010), 363 N.B.R.(2d) 159 (CA);

    363 R.N.-B.(2e) 159; 936 A.P.R. 159

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] N.B.R.(2d) TBEd. SE.015

Renvoi temp.: [2010] N.B.R.(2d) TBEd. SE.015

Fredy Andrade (appellant) v. Her Majesty the Queen (respondent)

(163-09-CA; 2010 NBCA 62)

Indexed As: R. v. Andrade (F.)

Répertorié: R. v. Andrade (F.)

New Brunswick Court of Appeal

Robertson, Quigg and Green, JJ.A.

August 19, 2010.

Summary:

Résumé:

The accused was convicted of assault and sentenced to 15 months' imprisonment. He was also given seven months' credit for pretrial custody resulting in a sentence of eight months' imprisonment which was to be served consecutively to a prior sentence that he was serving for a sexual assault. The accused applied for leave to appeal, and if granted, appealed. The accused asserted that the sentencing judge erred in failing to apply the "Coke rule" and by breaching the proportionality principle embedded in s. 718.1 of the Criminal Code.

The New Brunswick Court of Appeal granted the accused leave to appeal and allowed the appeal on the basis that the sentencing judge breached the proportionality principle. An appropriate sentence was six months' imprisonment. Where the accused had been credited with seven months for pretrial custody, the court stayed the execution of the sentence.

Criminal Law - Topic 4424

Procedure - Verdicts - General - Convictions - Lord Coke's rule - The accused was sentenced to 15 months for an assault that occurred on June 3, 2009 - On September 15, 2009, he was convicted and sentenced to 15 months' imprisonment for a sexual assault that occurred in April 2009 - The accused appealed the sentence for the assault conviction, asserting that the sentencing judge erred in not applying the Coke rule - The Coke rule provided that a harsher sentence with respect to a second offence could not be imposed unless the offender was convicted for the first offence prior to the commission of the second - The New Brunswick Court of Appeal stated that the Coke rule was formulated as a common law principle of statutory interpretation applicable to penal statues that provided harsher penalties for second and subsequent offences - The court concluded that there was no need to extend the rule beyond its original purposes for the following reasons: "In short, the law required a simple and expedient method for determining what qualifies as a second or subsequent offence. The rule does just that. Admittedly, it favours the offender but this is so because of the mandatory imposition of a fixed or minimum sentence; one that removes the element of discretion so as to impose a sentence that the court might not otherwise have imposed. On the other hand, there is no mandatory rule or principle that second or subsequent convictions for the same offence must attract a harsher sentence. Courts retain the discretion to decide whether prior convictions will be treated as an aggravating factor. Typically, a subsequent conviction will be viewed more seriously because of an earlier conviction but it does not automatically follow this is true in all cases. Moreover, the sentencing judge will be guided by the jump principle, sometimes called the step principle, which contemplates a progression in the length of sentences imposed in the event of recidivism for the same offences. One of the concerns of the court is to ensure that the offender is not being re-punished for past offences. ... In my view, the notion that the prior conviction should not be treated as part of the offender's criminal record for sentencing purposes, because he or she was not properly forewarned before committing the second or subsequence offence, is a theoretical construct too far removed from the realities of what is in the minds of repeat offenders and the purpose underlying the Coke rule. What is or is not an aggravating factor and how one should deal with the offender's prior criminal record is a matter better left to the sentencing judge having regard to the factual matrix under consideration." - See paragraphs 12 to 20.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 5806.1

Sentencing - General - Sentencing parity - General - The 27 year old accused was convicted for assaulting his mother - The accused and his mother became engaged in a heated verbal altercation - It was disputed whether the mother flicked a dish towel so as to strike the accused's face or whether she hit him with her hand causing his nose to bleed - The accused grabbed his mother's forearms and pushed her against the wall, leaving her with "redness" on her forearms - The accused had 24 prior convictions - His first three convictions involved a 2000 break and enter and an assault which resulted in a total sentence of two years' imprisonment - The last conviction was for a 2009 sexual assault which resulted in a sentence of 15 months' imprisonment - His record also included seven probation breaches - The sentencing judge sentenced the accused to 15 months' imprisonment based on (1) his record; (2) the victim being his mother; and (3) his uncontrollable temper - The judge credited him for seven months for pretrial custody leaving a sentence of eight months' consecutive to the sexual assault sentence being served - The New Brunswick Court of Appeal allowed an appeal where the sentencing judge breached the proportionality principle reflected in s. 718.1 of the Criminal Code - The Crown was unable to justify the imposition of the same sentence for the minor assault as was imposed for the serious one - No cases were found which justified the sentence - There was no evidence to infer that the accused suffered from a psychological disorder that rendered him a threat to public safety - The fact that the assault resulted from a temper lost was not an aggravating factor and that was assuming that the accused was not acting out of self-defence - The court concluded that a sentence of six months was appropriate - Giving the accused the benefit of seven months for pretrial custody, it was apparent that he had fully served his sentence by the time that he appeared for sentencing - The appropriate disposition was to stay the execution of the sentence - See paragraphs 21 to 28.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - An accused appealed his sentenced of 15 months' imprisonment for assaulting his mother - The New Brunswick Court of Appeal stated that "At the outset, let me state, unequivocally, that I do not subscribe to the appellant's contention that an assault upon one's mother is no different than an assault upon a stranger and, therefore, the trial judge erred in treating the assault upon his mother as an aggravating factor. This type of argument simply provides fodder for the public and press to raise questions about the sensitivity of the criminal justice system. For greater certainty and from a legal standpoint, I recognize that s. 718.2 expressly recognizes that evidence of spousal or partner abuse, or evidence of abuse of a person under the age of 18, qualifies as an aggravating factor that would support an increase in sentence. I also recognize that the provision makes no reference to abuse of one's parents. What is important to remember, however, is that the provision is subject to the caveat 'without limiting the generality of the foregoing.' That caveat preserves the right of the court to reduce or increase a sentence by reference to other unidentified, but relevant aggravating or mitigating factors. Hence, the trial judge was entitled to conclude that an assault upon one's mother or parent may qualify as an aggravating factor as does an assault upon one's spouse or partner." - See paragraph 11.

Criminal Law - Topic 5835

Sentencing - Considerations on imposing sentence - Protection of the public - [See Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - [See Criminal Law - Topic 4424 and Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - The New Brunswick Court of Appeal stated that "... a previous criminal record is critical to the matter of the offender's 'character' and Parliament's sentencing objectives. It is through the offender's criminal record that the potential for rehabilitation, recidivism and future dangerousness may be assessed. This explains why the law is often preoccupied with the nature or seriousness of the convictions and, in particular, previous convictions for the same offence. Inevitably, the sentencing court will resort to the penalty actually imposed as evidence of the seriousness of the offence. A prior criminal record evidencing 'violence' is treated as 'serious'. Obviously, a record which does not include crimes of violence is treated differently." - See paragraph 24.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents - [See Criminal Law - Topic 4424 and Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 5861

Sentence - Assault - [See Criminal Law - Topic 5806.1 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court fully or partially served - [See Criminal Law - Topic 5806.1 ].

Droit criminel - Cote 4424

Procédure - Verdicts - Généralités - Condamnations - Règle de Lord Coke - [Voir Criminal Law - Topic 4424 ].

Droit criminel - Cote 5801.1

Détermination de la peine - Généralités - Proportionnalité - [Voir Criminal Law - Topic 5801.1 ].

Droit criminel - Cote 5806.1

Détermination de la peine - Généralités - Harmonisation des peines - Généralités - [Voir Criminal Law - Topic 5806.1 ].

Droit criminel - Cote 5831.9

Détermination de la peine - Facteurs considérés lors de l'infliction de la peine - Violence domestique - [Voir Criminal Law - Topic 5831.9 ].

Droit criminel - Cote 5835

Détermination de la peine - Facteurs considérés lors de l'infliction de la peine - Protection du public - [Voir Criminal Law - Topic 5835 ].

Droit criminel - Cote 5842

Détermination de la peine - Facteurs considérés lors de l'infliction de la peine - Infractions criminelles antérieures - [Voir Criminal Law - Topic 5842 ].

Droit criminel - Cote 5846.5

Détermination de la peine - Facteurs considérés lors de l'infliction de la peine - Précédents en matière de sentence - [Voir Criminal Law - Topic 5846.5 ].

Droit criminel - Cote 5848.2

Détermination de la peine - Facteurs considérés lors de l'infliction de la peine - Période déjà purgée - [Voir Criminal Law - Topic 5848.2 ].

Droit criminel - Cote 5861

Peine - Voies de fait - [Voir Criminal Law - Topic 5861 ].

Droit criminel - Cote 6214

Détermination de la peine - Appels - Modification de la peine - Facteurs considérés - Lorsque la peine infligée par le tribunal de première instance a été purgée - [Voir Criminal Law - Topic 6214 ].

Cases Noticed:

R. v. Comeau (A.G.M.) (2008), 332 N.B.R.(2d) 308; 852 A.P.R. 308; 2008 NBCA 60, refd to. [para. 5].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 7].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 7].

R. v. Skolnick, [1982] 2 S.C.R. 47; 42 N.R. 460, consd. [para. 13].

R. v. Cheetham, [1980] O.J. No. 721 (C.A.), refd to. [para. 13].

R. v. O'Brien; Ex parte Chamberlain (1908), 38 N.B.R. 381, refd to. [para. 13].

R. v. Justices of Queens; Ex parte Miller (1875), 15 N.B.R. 485, refd to. [para. 13].

R. v. Turner (G.D.) (2010), 356 N.B.R.(2d) 293; 919 A.P.R. 293; 2010 NBQB 93 (T.D.), refd to. [para. 14].

O'Hara v. Harrington, [1962] Tas. S.R. 165 (Aust.), refd to. [para. 17].

Christie v. Britnell (1895), 21 V.L.R. 71 (Aust. S.C.), refd to. [para. 17].

Skybar Ltd. v. Liquor Control and Licensing Branch (B.C.) (2006), 222 B.C.A.C. 146; 368 W.A.C. 146; 2006 BCCA 62, refd to. [para. 18].

R. v. Stoddart, [2005] O.J. No. 6076 (Sup. Ct.), refd to. [para. 19].

R. v. Johnson (B.) (1998), 116 B.C.A.C. 279; 190 W.A.C. 279 (C.A.), refd to. [para. 19].

R. v. Sparkes (1978), 16 Nfld. & P.E.I.R. 363; 42 A.P.R. 363 (Nfld. C.A.), refd to. [para. 19].

R. v. N.F., [2008] O.T.C. Uned. C90 (Sup. Ct.), refd to. [para. 19].

R. v. Muyser (C.N.) (2009), 457 A.R. 216; 457 W.A.C. 216; 2009 ABCA 116, refd to. [para. 20].

R. v. Steeves (T.) (2010), 360 N.B.R.(2d) 88; 930 A.P.R. 88; 2010 NBCA 57, refd to. [para. 23].

R. v. Nash (A.W.) (2009), 340 N.B.R.(2d) 320; 871 A.P.R. 320; 2009 NBCA 7, refd to. [para. 25].

R. v. Goulette (L.F.) (2009), 350 N.B.R.(2d) 152; 903 A.P.R. 152; 2009 NBCA 49, refd to. [para. 25].

R. v. Melanson (K.P.) (2009), 347 N.B.R.(2d) 201; 894 A.P.R. 201; 2009 NBCA 41, refd to. [para. 25].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 718.2 [para. 11].

Authors and Works Noticed:

Coke's Institutes to the Statute of Westminster the Second (1285), 13 Edw. 1, generally [para. 20].

Coke, Edward, Coke's Institutes of the Laws of England (1628), generally [para. 2].

Ruby, Clayton C., Davies, Breese, Doucette, Delmar, Loosemore, Sarah, Orkin, Jessica, and Wawzonek, Caroline, Sentencing (7th Ed. 2008), p. 382 [para. 19].

Counsel:

Avocats:

Ben Reentovich, for the appellant;

Cameron H. Gunn, for the respondent.

This application and appeal were heard on May 13, 2010, by Robertson, Quigg and Green, JJ.A., of the New Brunswick Court of Appeal. The following reasons for judgment of the court were delivered in both official languages on August 19, 2010, by Robertson, J.A.