R. v. Doucette (L.J.), (2015) 365 Nfld. & P.E.I.R. 173 (PEICA)

JudgeJenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A.
Case DateMarch 24, 2015
JurisdictionPrince Edward Island
Citations(2015), 365 Nfld. & P.E.I.R. 173 (PEICA)

R. v. Doucette (L.J.) (2015), 365 Nfld. & P.E.I.R. 173 (PEICA);

    1138 A.P.R. 173

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. AP.028

Joseph Laurie Doucette (appellant) v. Her Majesty the Queen (respondent)

(S1-CA-1300; 2015 PECA 5)

Indexed As: R. v. Doucette (L.J.)

Prince Edward Island Court of Appeal

Jenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A.

April 23, 2015.

Summary:

The accused was sentenced to seven years' imprisonment after pleading guilty to trafficking in cocaine and seven years concurrent for possession of cocaine for the purpose of trafficking . In addition, the sentencing judge imposed a forfeiture order of offence related property (including his car), a DNA order and a weapons prohibition order. The accused appealed the custodial portion of his sentence, claiming that the sentencing judge failed to give credit in mitigation for his early guilty plea and further failed to properly consider the gap principle.

The Prince Edward Island Court of Appeal held that there was no error in how the sentencing judge dealt with the gap principle. However, the court allowed the appeal to the extent of reducing the seven year sentence to six years, because of the sentencing judge's failure to consider the early guilty plea. The accused was also given credit for two weeks for time served. The sentence was otherwise affirmed.

Criminal Law - Topic 5830

Sentencing - Considerations on imposing sentence - General (incl. step or jump principle and gap principle) - The accused was sentenced to seven years' imprisonment after pleading guilty to trafficking in cocaine and seven years concurrent for possession of cocaine for the purpose of trafficking - The accused appealed, arguing that the sentencing judge failed to properly consider the 14 year and two-month gap between offences (i.e., the gap principle) - The Prince Edward Island Court of Appeal held that even if the sentencing judge failed to adequately consider the gap principle, it was an error of no import - There were several factors that mitigated against credit for the gap - The previous offence involved trafficking in cannabis, while this one involved cocaine, representing not so much as a repeat but a step up in the drug world - This was not a momentary slip, but a clear return to criminal activity - Further, the gap was not actually 14 years and two months - See paragraphs 13 to 19.

Criminal Law - Topic 5830.4

Sentencing - Considerations on imposing sentence - Guilty plea - The Prince Edward Island Court of Appeal stated that absent good reason, a guilty plea had to be taken into account in mitigation of sentence - The court discussed the two rationales for why a guilty plea was a mitigating factor - Regardless of which rationale was used to justify a reduction in sentence, the amount of credit engendered by a guilty plea depended on the circumstances of the case - Where a reduction was warranted, it was not simply a matter of a mathematical calculation, rather there were many factors to be considered such as the strength of the Crown's case, the nature of the case, the timing of the guilty plea, etc. - See paragraphs 20 to 24.

Criminal Law - Topic 5830.4

Sentencing - Considerations on imposing sentence - Guilty plea - The accused was sentenced to seven years' imprisonment after pleading guilty to trafficking in cocaine and seven years concurrent for possession of cocaine for the purpose of trafficking - The accused appealed the sentence, claiming that the sentencing judge failed to give credit in mitigation for his early guilty plea - He pleaded guilty at his first court appearance and before he had full disclosure - The Prince Edward Island Court of Appeal allowed the appeal and reduced the sentence to six years because the sentencing judge failed to give credit for the accused's early guilty plea - The sentencing judge also erred in failing to give credit for two weeks served in pre-trial custody - See paragraphs 20 to 29.

Cases Noticed:

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. 11].

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. 11].

R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 11].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 11].

R. v. Nunn (J.A.) (2014), 359 Nfld. & P.E.I.R. 170; 1117 A.P.R. 170; 2014 PECA 21, refd to. [para. 11].

R. v. McLean (D.R.) (2014), 349 Nfld. & P.E.I.R. 180; 1085 A.P.R. 180; 2014 PECA 10, refd to. [para. 12].

R. v. Murray (B.J.), [2009] B.C.A.C. Uned. 87; 2009 BCCA 426, refd to. [para. 15].

R. v. Macki (C.F.), [2001] B.C.T.C. 427; 2001 BCSC 427, refd to. [para. 20].

R. v. Bruce (1982), 35 Nfld. & P.E.I.R. 530; 99 A.P.R. 530 (P.E.I.C.A.), refd to. [para. 20].

R. v. Weiler (1991), 92 Nfld. & P.E.I.R. 87; 287 A.P.R. 87 (P.E.I.T.D.), refd to. [para. 21].

R. v. Lyons (1991), 89 Nfld. & P.E.I.R. 33; 278 A.P.R. 33, refd to.. [para. 21].

R. v. Summers (S.), [2014] 1 S.C.R. 26; 456 N.R. 1 316; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 23].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 112 C.C.C.(3d) 97 (C.A.), refd to. [para. 23].

R. v. Partridge (C.S.) (2005), 238 N.S.R.(2d) 373; 757 A.P.R. 373; 2005 NSCA 159, refd to. [para. 27].

Authors and Works Noticed:

Ruby, Clayton, Sentencing, p. 391 [para. 13].

Counsel:

R. Brendan Hubley, for the appellant;

Rachel Furey, for the respondent.

This appeal was heard in Charlottetown, P.E.I., on March 24, 2015, before Jenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A., of the Prince Edward Island Court of Appeal. The following decision was delivered for the court by Mitchell, J.A., on April 23, 2015.

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