R. v. Cooper (D.W.), (2009) 270 B.C.A.C. 247 (CA)

• Judge: Rowles, Huddart and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 01, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 270 B.C.A.C. 247 (CA);2009 BCCA 208

R. v. Cooper (D.W.) (2009), 270 B.C.A.C. 247 (CA);

    454 W.A.C. 247

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. MY.047

Regina (respondent) v. David Wayne Cooper (appellant)

(CA036912; 2009 BCCA 208)

Indexed As: R. v. Cooper (D.W.)

British Columbia Court of Appeal

Rowles, Huddart and D. Smith, JJ.A.

May 11, 2009.

Summary:

The accused pled guilty to six offences: criminal harassment, assault, mischief (wilful damage to a vehicle), attempting to obstruct justice, breaches of an undertaking and breaches of a recognizance. The accused's estranged wife was the complainant in all of those counts. The trial judge also found the accused guilty of a charge of assault causing bodily harm. The complainant in that offence was a stranger to the accused who had asked the accused's wife to dance. For the offence of assault causing bodily harm, the trial judge, after giving the accused credit for seven months, which was roughly double the time he had spent in pre-disposition custody, imposed a sentence of one day. With respect to the six offences on which guilty pleas were entered, the trial judge sentenced the accused to a total of six months' imprisonment. The accused applied for leave to appeal on the ground that the trial judge declined, without good reason, to accept a joint submission for a 15 to 18 month conditional sentence for the six offences to which the accused had pled guilty. The accused also submitted that the six month sentence was too harsh for those offences.

The British Columbia Court of Appeal granted leave to appeal and dismissed the appeal.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused pled guilty to six offences: criminal harassment, assault, mischief (wilful damage to a vehicle), attempting to obstruct justice, breaches of an undertaking and breaches of a recognizance - The accused's estranged wife was the complainant in all of those counts - The trial judge also found the accused guilty of a charge of assault causing bodily harm - The complainant in that offence, who was a stranger to the accused and had simply asked the accused's wife to dance, sustained two broken ribs and a broken jaw - The accused had a prior criminal record - For the offence of assault causing bodily harm, the trial judge, after giving the accused credit for seven months, which was roughly double the time he had spent in pre-disposition custody, imposed a sentence of one day - With respect to the six offences on which guilty pleas were entered, the trial judge sentenced the accused to a total of six months' imprisonment - The accused appealed on the ground that the trial judge declined, without good reason, to accept a joint submission for a 15 to 18 month conditional sentence for the six offences to which the accused had pled guilty - The accused also submitted that the six month sentence was too harsh for those offences - The British Columbia Court of Appeal dismissed the appeal - The trial judge gave reasons for departing from the joint submission - The judge correctly recognized that a sentence emphasizing denunciation and deterrence was required in this case and to impose a conditional sentence would not have been in accord with the purposes and principles of sentencing to which he referred - Moreover, the accused's many past breaches of probation and recognizance of bail demonstrated that the accused was unlikely to adhere to the terms of a conditional sentence - The trial judge's rejection of a conditional sentence was not unreasonable and the six month sentence imposed for the offences to which the accused had pled guilty was not unfit.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5861

Sentence - Assault (incl. common assault) - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5890

Sentence - Mischief (includes vandalism) - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5910

Sentence - Obstructing justice - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5969

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

Cases Noticed:

R. v. Grimsson (K.A.) (1997), 100 B.C.A.C. 253; 163 W.A.C. 253 (C.A.), refd to. [para. 18].

R. v. Innes (R.A.) (2000), 142 B.C.A.C. 147; 233 W.A.C. 147; 2000 BCCA 429, refd to. [para. 18].

R. v. Bezdan (J.G.) (2001), 154 B.C.A.C. 122; 252 W.A.C. 122; 2001 BCCA 215, refd to. [para. 18].

R. v. Douglas (2002), 162 C.C.C.(3d) 37; 49 C.R.(5th) 188 (Que. C.A.), refd to. [para. 19].

R. v. Stanley, [1986] B.C.J. No. 695 (C.A.), refd to. [para. 24].

R. v. Julian, [1990] B.C.J. No. 2775 (C.A.), refd to. [para. 24].

R. v. Goodings (1991), 1 B.C.A.C. 44; 1 W.A.C. 44 (C.A.), refd to. [para. 24].

R. v. Khemhus (R.F.) (1994), 54 B.C.A.C. 158; 88 W.A.C. 158 (C.A.), refd to. [para. 24].

R. v. Dwyer (T.M.) (1996), 81 B.C.A.C. 129; 132 W.A.C. 129 (C.A.), refd to. [para. 24].

R. v. Dwyer (T.M.) (1996), 84 B.C.A.C. 26; 137 W.A.C. 26 (C.A.), refd to. [para. 24].

R. v. Hunter (R.C.) (2006), 231 B.C.A.C. 55; 381 W.A.C. 55; 2006 BCCA 433, refd to. [para. 24].

Counsel:

Appellant self-represented via videoconference;

M. Brown, for the respondent.

This application and appeal were heard on May 1, 2009, at Vancouver, B.C., before Rowles, Huddart and D. Smith, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Rowles, J.A., on May 11, 2009.