R. v. Grossetete (R.F.), (2012) 522 A.R. 399

• Judge: Côté, Hunt and Slatter, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: January 18, 2012
• Jurisdiction: Northwest Territories
• Citations: (2012), 522 A.R. 399

R. v. Grossetete (R.F.) (2012), 522 A.R. 399; 544 W.A.C. 399 (NWTCA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. FE.074

Her Majesty The Queen (respondent) v. Robert F. Grossetete (appellant)

(A-1-AP-2011-000012; 2012 NWTCA 2)

Indexed As: R. v. Grossetete (R.F.)

Northwest Territories Court of Appeal

Côté, Hunt and Slatter, JJ.A.

January 18, 2012.

Summary:

The accused pleaded guilty to two counts of assault and one count of uttering threats. The Crown and accused jointly recommended a sentence of nine months' imprisonment, less credit for 83 days' pre-trial custody. The sentencing judge advised that he had "discomfort" with the recommended sentence. Defence counsel was twice permitted to make submissions. The judge sentenced the accused to four months' imprisonment for the first assault, nine months' imprisonment (consecutive) for the second assault and three months' imprisonment for the threats, for a total of 16 months' imprisonment. No specific credit was given for pre-trial custody on the ground that the sentencing judge had already taken it into consideration in imposing sentence. The accused appealed, arguing that the sentencing judge (1) failed to follow the proper procedure before deciding to impose a sentence greater than that jointly submitted and (2) erred in failing to give credit for pre-trial custody.

The Northwest Territories Court of Appeal allowed the appeal in part, reducing the global sentence to 13 months' imprisonment (reducing second assault from nine to six months), less credit for 83 days of pre-trial custody.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of accused - Plea bargain or joint submission - Effect of - The accused pleaded guilty to two counts of assault and one count of uttering threats - The accused punched someone in the jaw - Two weeks later, he punched his girlfriend in the face twice with a closed fist - Later, when being arrested, he threatened to kill one of the officers - The accused had a lengthy criminal record dating from 1984, including 11 convictions for assault, three for assault with a weapon, four for uttering threats, and single convictions for assault causing bodily harm, assaulting a police officer and aggravated assault - The accused and Crown jointly recommended a sentence of nine months' imprisonment, less credit for 83 days of pre-trial custody - The sentencing judge told the parties he was uncomfortable with the recommended sentence - The accused was permitted to twice make additional submissions - The trial judge rejected the jointly recommended sentence as unfit and failing to meet the needs of deterrence and protection of the public - The judge sentenced the accused to four months' imprisonment for the first assault, nine months' imprisonment (consecutive) for the second assault and three months' imprisonment for the threats, for a total of 16 months' imprisonment - No specific credit was given for pre-trial custody - The Northwest Territories Court of Appeal allowed the appeal in part - The judge gave proper consideration to the jointly recommended sentence, advised counsel of his concerns and twice received and considered the accused's submissions on his concerns - The proper procedure was followed - However, the sentence imposed on the second assault (nine months), although properly higher than the first assault, was unfit - The court substituted a sentence of six months' imprisonment, reducing the global sentence from 16 months to 13 months - Further, the judge erred in failing to give the accused 83 days' credit for pre-trial custody.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5861

Sentence - Assault - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5895

Sentence - Threats - [See Criminal Law - Topic 5813 ].

Cases Noticed:

R. v. G.W.C. (2000), 277 A.R. 20; 242 W.A.C. 20; 2000 ABCA 333, refd to. [para. 10].

Counsel:

D. Rideout, for the respondent;

S.J. Fix, for the appellant.

This appeal was heard on January 18, 2012, before Côté, Hunt and Slatter, JJ.A., of the Northwest Territories Court of Appeal.

The following memorandum of judgment was delivered orally by Hunt, J.A., on January 18, 2012, and filed on January 25, 2012.