R. v. D.W., (2011) 305 Nfld. & P.E.I.R. 59 (NLCA)

• Judge: Green, C.J.N.L., Welsh and White, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: February 09, 2011
• Jurisdiction: Newfoundland and Labrador
• Citations: (2011), 305 Nfld. & P.E.I.R. 59 (NLCA);2011 NLCA 21

R. v. D.W. (2011), 305 Nfld. & P.E.I.R. 59 (NLCA);

    948 A.P.R. 59

MLB headnote and full text

Temp. Cite: [2011] Nfld. & P.E.I.R. TBEd. MR.002

D.W. (appellant) v. Her Majesty the Queen (respondent)

(10/121; 10/124; 2011 NLCA 21)

Indexed As: R. v. D.W.

Newfoundland and Labrador Court of Appeal

Green, C.J.N.L., Welsh and White, JJ.A.

January 18, 2011 and February 9, 2011.

Summary:

The accused, a young offender, pled guilty to robbery. The trial judge sentenced the accused to six months' secure custody followed by a three month supervision order and 12 months' probation. The trial judge imposed a lifetime weapons prohibition order and a DNA order. The accused applied for leave to appeal and, if granted, appealed the sentence.

The Newfoundland and Labrador Court of Appeal granted leave to appeal, allowed the appeal and set aside the sentence. The court substituted a sentence of four months' deferred custody and supervision, with conditions, and 16 months' probation. The court ordered the accused to pay restitution of $300, varied the weapons prohibition order from a lifetime prohibition to two years and affirmed the DNA order.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5799

Punishments (sentence) - Prohibition orders - Respecting firearms, etc. - The accused, a young offender (aged 16), pled guilty to robbery - The accused robbed the complainant - In the result, the complainant lost his chain, his jacket and jeans were damaged and he suffered scrapes, scratches and bruising which caused him pain and discomfort together with psychological trauma for some time after the incident - The accused had a prior conviction for robbery - During sentencing, the trial judge relied on s. 109 of the Criminal Code and imposed a lifetime weapons prohibition - The Newfoundland and Labrador Court of Appeal varied the weapons prohibition order from a lifetime prohibition to two years - The trial judge erred by relying on s. 109 of the Code - The relevant provision was s. 51 of the Youth Criminal Justice Act - Section 51 provided for a minimum weapons prohibition of two years - Unlike s. 109 of the Code, there was no mandatory lifetime prohibition for a second offence - Section 51 was engaged because the offence fell within s. 109(1) of the Code - In the circumstances of this case, a two year firearm prohibition was appropriate and supported by the case law - See paragraphs 25 to 29.

Criminal Law - Topic 5855

Sentence - Robbery - [See Criminal Law - Topic 8817.2 ].

Criminal Law - Topic 8806

Young offenders - Decisions (incl. punishments) - Sentencing considerations - [See Criminal Law - Topic 8817.2 ].

Criminal Law - Topic 8817.2

Young offenders - Decisions (incl. punishments) - Deferred custody and supervision order (incl. breach and house arrest) - The accused, a young offender (aged 16), pled guilty to robbery - The accused robbed the complainant - In the result, the complainant lost his chain, his jacket and jeans were damaged and he suffered scrapes, scratches and bruising which caused him pain and discomfort together with psychological trauma for some time after the incident - The accused had a prior conviction for robbery - He lived at home, was not attending school but was employed - The trial judge sentenced the accused to six months' secure custody followed by a three month supervision order and 12 months' probation - The Newfoundland and Labrador Court of Appeal substituted a sentence of four months' deferred custody and supervision, with conditions, and 16 months' probation - The trial judge did not explain, as required by s. 39(1) of the Youth Criminal Justice Act, why a non-custodial sentence would be inadequate to achieve the purpose set out in s. 38(1) of the Act, nor why he considered secure custody to be the least restrictive sentence (s. 38(2)(e)(i)) - There was no discussion of available alternatives and why they should be dismissed as inappropriate - The trial judge erred and appellate intervention was required - With particular attention to rehabilitation and promotion of a sense of responsibility, a deferred custody and supervision order was consistent with the requirements of the Act - The pre-sentence report was very positive - The accused's parents were in a position to provide support and guidance, and appeared to be committed to that responsibility - The accused pled guilty and had accepted responsibility for his conduct - See paragraphs 3 to 24.

Cases Noticed:

R. v. Jesso (H.) (2008), 276 Nfld. & P.E.I.R. 147; 846 A.P.R. 147; 2008 NLCA 30, refd to. [para. 7].

R. v. Perrier (P.C.) (2009), 293 Nfld. & P.E.I.R. 92; 906 A.P.R. 92; 2009 NLCA 61, refd to. [para. 7].

R. v. B.W.P.; R. v. B.V.N., [2006] 1 S.C.R. 941; 350 N.R. 1; 205 Man.R.(2d) 282; 375 W.A.C. 282; 227 B.C.A.C. 1; 374 W.A.C. 1; 2006 SCC 27, refd to. [para. 9].

R. v. C.D., [2005] 3 S.C.R. 668; 343 N.R. 1; 376 A.R. 258; 360 W.A.C. 258, refd to. [para. 10].

R. v. C.J.T. (2010), 258 Man.R.(2d) 8; 499 W.A.C. 8; 2010 MBCA 61, refd to. [para. 28].

R. v. J.C. (2010), 361 Sask.R. 98; 2010 SKPC 113, refd to. [para. 28].

R. v. K.C. (2008), 316 Sask.R. 232; 2008 SKPC 80, refd to. [para. 28].

R. v. D.C., 2008 CarswellOnt 3972 (Sup. Ct.), refd to. [para. 28].

R. v. B.B., 2007 ONCJ 428, refd to. [para. 28].

R. v. H.R.F. (2007), 292 Sask.R. 52; 2007 SKPC 6, refd to. [para. 28].

Counsel:

Jennifer Curran, for the appellant;

Sheldon Steeves and Elaine Reid, for the respondent.

This appeal was heard and decided on January 18 and February 9, 2011, by Green, C.J.N.L., Welsh and White, JJ.A., of the Newfoundland and Labrador Court of Appeal. The following written reasons for judgment of the Court of Appeal were filed by Welsh, J.A., on March 2, 2011.