R. v. G.P., 2004 NSCA 154

• Judge: Bateman, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 21, 2004
• Jurisdiction: Nova Scotia
• Citations: 2004 NSCA 154;(2004), 229 N.S.R.(2d) 61 (CA)

R. v. G.P. (2004), 229 N.S.R.(2d) 61 (CA);

 725 A.P.R. 61

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. DE.046

G.P. (appellant) v. Her Majesty The Queen (respondent)

(CAC 204237; 2004 NSCA 154)

Indexed As: R. v. G.P.

Nova Scotia Court of Appeal

Bateman, Hamilton and Fichaud, JJ.A.

December 21, 2004.

Summary:

The accused pleaded guilty to keeping a common bawdy house, procuring prostitution, householder permitting sexual activity, possessing, making and distributing child pornography and sexual exploitation of a young person. There were multiple counts relating to each offence (14 counts total). The Crown and accused made a joint submission for a sentence of six years' imprisonment, reduced by 28 months for 14 months spent in pre-trial custody.

The Nova Scotia Provincial Court, in a judgment not reported in this series of reports, rejected the joint submission and imposed a global sentence of nine years and 10 months' imprisonment, reduced to 7.5 years after giving 28 months' credit for pre-trial custody. The accused appealed, submitting that the judge erred in failing to give effect to the joint submission.

The Nova Scotia Court of Appeal allowed the appeal and substituted the jointly recommended sentence.

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 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The accused pleaded guilty to keeping a common bawdy house, procuring prostitution, householder permitting sexual activity, possessing, making and distributing child pornography and sexual exploitation of a young person - There were multiple counts relating to each offence (14 counts total) - One of the victims was his 15 year old daughter - The Crown and accused made a joint submission for a sentence of six years' imprisonment, reduced by 28 months for 14 months spent in pre-trial custody - The sentencing judge rejected the joint submission and imposed a global sentence of nine years and 10 months' imprisonment, reduced to 7.5 years after giving 28 months' credit for pre-trial custody - The Nova Scotia Court of Appeal allowed the accused's sentence appeal and substituted the jointly recommended sentence - This was a genuine plea bargain - The judge erred in departing from the recommended sentence without first alerting counsel of his concerns about the fitness of the sentence and without giving them an opportunity to address that issue - The recommended sentence resulted from a genuine plea bargain, which took into account the early guilty plea (sparing victims from testifying), the complexity of the computer and technical aspects of the evidence and the reluctance of some of the victims to testify - The court stated that "in light of this additional material, particularly the potential for problems of proof at trial, I am not persuaded that the sentence as proposed is contrary to the public interest or would bring the administration of justice into disrepute".

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The Nova Scotia Court of Appeal referred to the following summary of the law respecting joint submissions: "(1) While the discretion ultimately lies with the court, the proposed sentence should be given very serious consideration. (2) The sentencing judge should depart from the joint submission only when there are cogent reasons for doing so. Cogent reasons may include, among others, where the sentence is unfit, unreasonable, would bring the administration of justice into disrepute or be contrary to the public interest. (3) In determining whether cogent reasons exist (i.e., in weighing the adequacy of the proposed joint submission), the sentencing judge must take into account all the circumstances underlying the joint submission. Where the case falls on the continuum among plea bargain, evidentiary considerations, systemic pressures and joint submissions will affect, perhaps significantly, the weight given the joint submission by the sentencing judge. (4) The sentencing judge should inform counsel during the sentencing hearing if the court is considering departing from the proposed sentence in order to allow counsel to make submissions justifying the proposal. (5) The sentencing judge must then provide clear and cogent reasons for departing from the joint submission. Reasons for departing from the proposed sentence must be more than an opinion on the part of the sentencing judge that the sentence would not be enough. The fact that the crime committed could reasonably attract a greater sentence is not alone reason for departing from the proposed sentence. The proposed sentence must meet the standard described in para. 2, considering all of the principles of sentencing, such as deterrence, denunciation, aggravating and mitigating factors, and the like." - See paragraph 15.

Cases Noticed:

R. v. MacIvor (R.M.) (2003), 215 N.S.R.(2d) 344; 675 A.P.R. 344 (C.A.), refd to. [para. 13].

R. v. Sinclair (E.J.) (2004), 184 Man.R.(2d) 1; 318 W.A.C. 1; 185 C.C.C.(3d) 569 (C.A.), refd to. [para. 15].

R. v. Bezdan (J.G.) (2001), 154 B.C.A.C. 122; 252 W.A.C. 122 (C.A.), refd to. [para. 16].

R. v. McKay (D.E.) (2004), 184 Man.R.(2d) 259; 318 W.A.C. 259; 186 C.C.C.(3d) 328 (C.A.), refd to. [para. 17].

Counsel:

Sandra Sarto and Darren MacLeod, for the appellant;

Peter Rosinski, for the respondent.

This appeal was heard on November 18, 2004, at Halifax, N.S., before Bateman, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On December 21, 2004, Bateman, J.A., delivered the following judgment for the Court of Appeal.