R. v. Bratzer (J.T.), (2001) 198 N.S.R.(2d) 303 (CA)

• Judge: Bateman, Chipman and Saunders, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 22, 2001
• Jurisdiction: Nova Scotia
• Citations: (2001), 198 N.S.R.(2d) 303 (CA);2001 NSCA 166

R. v. Bratzer (J.T.) (2001), 198 N.S.R.(2d) 303 (CA);

 621 A.P.R. 303

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. DE.006

Her Majesty The Queen (appellant) v. Jesse Thomas Bratzer (respondent)

(C.A.C. No. 170831; 2001 NSCA 166)

Indexed As: R. v. Bratzer (J.T.)

Nova Scotia Court of Appeal

Bateman, Chipman and Saunders, JJ.A.

November 22, 2001.

Summary:

Over an eight day period, the 18 year old accused committed three robberies. He pleaded guilty to three counts of robbery and one count of being masked while committing an offence. The trial judge sentenced the accused to concurrent conditional sentences of two years less a day. The Crown ap­pealed, submitting that the length of the sentence was manifestly inadequate, that the sentences should not have been concurrent and that conditional sentences were inappro­priate.

The Nova Scotia Court of Appeal dis­missed the appeal. The sentences were ad­mittedly lenient, as robberies usually at­tracted sentences starting at three years' imprisonment. However, the exceptional cir­cumstances in this case warranted a de­parture from the standard sentence and the concurrent conditional sentences were not manifestly unfit.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - An 18 year old accused pleaded guilty to three counts of robbery and one count of being masked with intent - They were gas station and convenience store robberies, with the usual sentence starting at three years' imprisonment - In the 14 months between arrest and sentencing, the accused dramatically reformed his life - The ac­cused, inter alia, completed his Grade 12, obtained psychiatric counselling, was backed by a stable family, continued with his militia involvement and intended to embark upon his chosen career in the military - Specific deterrence was not needed and there was no risk of re-offend­ing - Two pre-sentence reports evidenced the accused's reformation - The Nova Scotia Court of Appeal held that the trial judge did not err in imposing concurrent conditional sentences of two years' im­prisonment less a day - Notwithstanding the sentence was lenient and at the low end of the range, exceptional circumstances resulted in a conditional sentence not being demonstrably unfit - Leniency served the goal of protection of the public through reformation and rehabilitation - Additional­ly, there was no error in making the sen­tences concurrent - See paragraphs 16 to 63.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sen­tences - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5830.1

Sentencing - Considerations on imposing sentence - Mercy or leniency - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5834.2

Sentencing - Considerations on imposing sentence - Effect on victim (incl. victim impact statements) - The Nova Scotia Court of Appeal discussed the role of and limitations on victim impact statements - See paragraphs 44 to 45.

Criminal Law - Topic 5849.2

Sentencing - Considerations on imposing sentence - Reformation of accused - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5855

Sentence - Robbery - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5935

Sentence - Disguise with intent - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sen­tence - Powers of appeal court - The Nova Scotia Court of Appeal referred to the deferential standard on a review of a sen­tence imposed by a trial judge: "an appel­late court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentenc­ing order is a profoundly subjective pro­cess; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sen­tence to be clearly unreasonable." - See paragraph 8.

Cases Noticed:

R. v. Cormier (1975), 9 N.S.R.(2d) 687 (C.A.), refd to. [para. 7].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, 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, refd to. [para. 9].

R. v. Muise (D.R.) (1994), 135 N.S.R.(2d) 81; 386 A.P.R. 81; 94 C.C.C.(3d) 119 (C.A.), refd to. [para. 11].

R. v. Longaphy (J.F.) (2000), 189 N.S.R.(2d) 102; 590 A.P.R. 102 (C.A.), refd to. [para. 13].

R. v. Parker (R.D.R.) (1997), 159 N.S.R.(2d) 166; 468 A.P.R. 166 (C.A.), refd to. [para. 14].

R. v. S.P.C. (1999), 175 N.S.R.(2d) 158; 534 A.P.R. 158 (C.A.), refd to. [para. 15].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 37].

R. v. Leask (J.C.) et al. (1996), 113 Man.R.(2d) 265; 131 W.A.C. 265 (C.A.), refd to. [para. 40].

R. v. Demeter and Whitmore (1976), 32 C.C.C.(2d) 379 (Ont. C.A.), refd to. [para. 40].

R. v. Casey, [1977] O.J. No. 214 (C.A.), refd to. [para. 40].

R. v. Quesnel and Smith (1984), 4 O.A.C. 393; 14 C.C.C.(3d) 254 (C.A.), refd to. [para. 41].

R. v. Sweeney (1992), 7 B.C.A.C. 1; 15 W.A.C. 1; 71 C.C.C.(3d) 82 (C.A.), refd to. [para. 44].

R. v. J.W. (1997), 99 O.A.C. 161; 115 C.C.C.(3d) 18 (C.A.), refd to. [para. 47].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 210; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 48].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 49].

R. v. Wallace (1973), 11 C.C.C.(2d) 95 (Ont. C.A.), refd to. [para. 58].

R. v. Grady (1971), 5 N.S.R.(2d) 264 (C.A.), refd to. [para. 62].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 718, sect. 718.1, sect. 718.2 [para. 11]; sect. 718.3(1) [para. 6]; sect. 742.1, sect. 742.2, sect. 742.3 [para. 12].

Authors and Works Noticed:

Ruby, Clayton, Sentencing (5th Ed.), para. 2.75 [para. 60].

Counsel:

Peter Rosinski, for the appellant;

Kevin Coady, for the respondent.

This appeal was heard on October 16, 2001, before Bateman, Chipman and Saunders, JJ.A., of the Nova Scotia Court of Appeal.

On November 22, 2001, Bateman, J.A., de­livered the following judgment for the Court of Appeal.