R. v. Dechateauvert (D.R.), 2016 MBCA 8

• Judge: Pfuetzner, J.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 23, 2015
• Jurisdiction: Manitoba
• Citations: 2016 MBCA 8;(2016), 323 Man.R.(2d) 308 (CA)

R. v. Dechateauvert (D.R.) (2016), 323 Man.R.(2d) 308 (CA);

      657 W.A.C. 308

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. FE.006

Her Majesty The Queen (respondent) v. Darcy Rene Dechateauvert (accused/appellant)

(AR 15-30-08518; 2016 MBCA 8)

Indexed As: R. v. Dechateauvert (D.R.)

Manitoba Court of Appeal

Pfuetzner, J.A.

January 19, 2016.

Summary:

The accused pled guilty to three counts: two counts of breaching non-communication orders (Criminal Code, ss. 127(1) and 145(3)) and one count of failure to attend court when required (s. 145(2)(a)). The accused sought leave to appeal the six month sentence and the non-communication order imposed for the second breach charge.

The Manitoba Court of Appeal, per Pfuetzner, J.A., dismissed the application.

Criminal Law - Topic 5799.3

Punishments (sentence) - Prohibition orders - Respecting contact with victims or others - The accused pled guilty to two counts of breaching non-communication orders and one count of failure to attend court when required - These charges arose when he was already in custody on two charges of assaulting his spouse and one each of assaulting his daughter with a weapon, assaulting his daughter causing her bodily harm, and breaching his recognizance by having contact with his spouse and daughter - Between June 29 and July 6, 2015, while in custody and bound by a direction not to communicate with his spouse, he made 472 phone calls to her using another inmate's personal identification number (PIN) (subject of the first breach charge) - The accused then switched to another inmate's PIN and continued to call her in breach of the non-communication order (1,330 more calls between July 9 and October 14, 2015; subject of the second breach charge) - Ultimately, the pending assault charges were stayed as the accused's spouse and daughter would not co-operate with the Crown - Lengthy prior record, including nine convictions for breaching court orders - At the sentencing hearing, the accused's spouse, children and mother-in-law submitted letters of support expressing their desire for the accused to be released from custody to rejoin the family - The sentencing judge sentenced the accused to 15 days' custody for the failure to attend court and six months' custody each for the breaches, consecutive - After 1:1 credit for time served, he was required to serve 6.5 months going forward - The sentencing judge also imposed a non-communication order respecting his spouse and 18 months' supervised probation - The accused sought leave to appeal the six month sentence and the non-communication order for the charge relating to the 1,330 calls - The Manitoba Court of Appeal, per Pfuetzner, J.A., dismissed the application - The accused did not have an arguable case that the six month sentence was unfit or arrived at by an error in principle - Further, there was no likelihood that the sentencing judge's decision to give the accused's family the "benefit" of him not contacting them for a cooling off period while he served his prison sentence would be disturbed on appeal if leave was granted.

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See Criminal Law - Topic 5799.3 ].

Criminal Law - Topic 6211.1

Sentencing - Appeals - Variation of sentence - Application for leave to appeal - Bars - [See Criminal Law - Topic 5799.3 ].

Cases Noticed:

R. v. Gill (J.S.), [2010] Man.R.(2d) Uned. 67; 2010 MBCA 92, refd to. [para. 13].

R. v. Green (J.R.) (2005), 249 Nfld. & P.E.I.R. 150; 743 A.P.R. 150; 2005 PESCAD 21, refd to. [para. 13].

R. v. Langlois (D.J.) (2008), 228 Man.R.(2d) 256; 427 W.A.C. 256; 2008 MBCA 72, refd to. [para. 13].

R. v. Hansen (A.D.) (2008), 261 B.C.A.C. 281; 440 W.A.C. 281; 2008 BCCA 439, refd to. [para. 13].

R. v. Amin (W.U.) (2010), 251 Man.R.(2d) 137; 478 W.A.C. 137; 2010 MBCA 15, refd to. [para. 15].

Counsel:

B.H. Sinder, for the appellant;

N.P. Steen, for the respondent.

This application for leave to appeal sentence was heard on December 23, 2015, by Pfuetzner, J.A., of the Manitoba Court of Appeal, who delivered the following decision on January 19, 2016.