R. v. Halleran (J.), (2013) 334 Nfld. & P.E.I.R. 136 (NLPC)

• Judge: Marshall, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: December 13, 2012
• Jurisdiction: Newfoundland and Labrador
• Citations: (2013), 334 Nfld. & P.E.I.R. 136 (NLPC);2013 NLPC 011103353

R. v. Halleran (J.) (2013), 334 Nfld. & P.E.I.R. 136 (NLPC);

    1037 A.P.R. 136

MLB headnote and full text

Temp. Cite: [2013] Nfld. & P.E.I.R. TBEd. MR.038

Her Majesty the Queen v James Shawn Halleran

(2013 NLPC 011103353; 0112A03003)

Indexed As: R. v. Halleran (J.)

Newfoundland and Labrador Provincial Court

Marshall, P.C.J.

February 28, 2013.

Summary:

The accused pleaded guilty to: (1) aggravated assault by unlawfully wounding, maiming, disfiguring or endangering the life of Lawrence Whitten (Criminal Code, ss. 268(1), 268(2)); (2) unlawful discharge of a firearm with intent to wound, maim, disfigure or endanger the life of Lawrence Whitten (ss. 244(1), 244(2)); (3) failure to comply with a condition in a probation order to keep the peace and be of good behaviour (s. 733.1(1)(a)), all on October 26, 2011; and (4) failure to comply with a condition of a recognizance (s. 145(3)), on September 18, 2012.

The Newfoundland and Labrador Provincial Court sentenced the accused as follows: (1) aggravated assault, seven years; (2) unlawful discharge of a firearm, seven years, concurrent; (3) breach of probation order, 13 days (time served); and (4) breach of a recognizance, 30 days (time served). This left 164 days of the days spent on remand to be deducted from the seven year sentence. Because there were two separate charges with a seven year sentence on each, to run concurrently, there had to be a reduction in one of the sentences in order to ensure that the accused received his remand credit of 164 days. Consequently, the sentence on the charge of unlawful discharge of a firearm was reduced from seven to 6.5 years. The court also imposed a 10 years mandatory firearms prohibition and made a DNA order. As the accused would be incarcerated for some time, the court waived the victim fine surcharges.

Editor's Notes: 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.

The accused was granted bail on review, in a decision reported at (2011), 321 Nfld. & P.E.I.R. 198; 996 A.P.R. 198 (N.L.T.D. (G.)).

Criminal Law - Topic 5731

Punishments (sentence) - Probation or probation order - Breach of - The accused arranged a drug buy from Whitten with the intention of stealing the drugs (marijuana) - The accused intentionally injured Whitten in the process (gunshot wound and stab wounds) - The stolen drugs and guns used in the assault were never recovered - At the time of the incident, the accused had just completed a conditional sentence for assault with a weapon and was subject to an 18 month probation order to keep the peace and be of good behaviour - He was remanded for 43 days, then granted bail - Subsequently, he was charged with breaching his recognizance by failing to comply with his curfew and remanded until trial - The Newfoundland and Labrador Provincial Court sentenced the accused as follows: (1) aggravated assault, seven years; (2) unlawful discharge of a firearm with intent, seven years, concurrent; (3) breach of probation order, 13 days (time served); and (4) breach of a recognizance, 30 days (time served) - The sentence disposed of 43 days spent on remand leaving 164 days remaining which were to be deducted from the seven year sentence - Because there were two separate charges with a seven year sentence on each to run concurrently, there had to be a reduction in one of the sentences in order to ensure that the accused received his remand credit of 164 days - Consequently, the sentence on the charge of unlawful discharge of a firearm was reduced from seven years to 6.5 years - Mitigating factors were: the accused's guilty plea, youth, and supportive family - The aggravating circumstances were: planning, accused initially masked, prolonged and violent attack, serious injuries to the complainant and questionable remorse.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See Criminal Law - Topic 5731 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The accused arranged a drug buy from Whitten with the intention of stealing the drugs (marijuana) - The accused intentionally injured Whitten in the process (gunshot wound and stab wounds) - At the time, the accused had just completed a conditional sentence for assault with a weapon and was subject to an 18 month probation order to keep the peace and be of good behaviour - He was remanded for 43 days, then granted bail - Subsequently, he was charged with breaching his recognizance by failing to comply with his curfew and remanded until trial - The Crown submitted that 1:1.5 credit could apply to the first block of remand time (43 days), but the ratio of 1:1 should apply to the second block of remand time (164 days) - The defence asked for 1:1.5 credit for all 207 days remand time, pointing out that there was legal impediment where the accused had not applied for bail - The defence also submitted that the breach of curfew was on the lower end of the scale, the accused had not committed a new criminal offence while on release and he recognized that failing to abide by his curfew was a serious mistake - The Newfoundland and Labrador Provincial Court granted 1:1 credit for all 270 days - Although 1:1.5 credit appeared to be available to the accused, the defence submissions in support of enhanced credit were not compelling - Although the accused did not have a bail hearing, he should have realized the importance of complying with all conditions of his recognizance, regardless of how minor he perceived the condition to be - Furthermore, the fact that he did not breach by committing another criminal offence or that he had since recognized that it was a serious mistake to have not complied with his release conditions was not persuasive - In addition, he admitted in the pre-sentence report that he had smoked marijuana contrary to another condition in his recognizance - See paragraphs 53 to 59.

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See Criminal Law - Topic 5731 ].

Criminal Law - Topic 5903

Sentence - Discharge of firearm with intent - [See Criminal Law - Topic 5731 ].

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See Criminal Law - Topic 5731 ].

Cases Noticed:

R. v. Ivanic (A.J.) (2011), 304 B.C.A.C. 44; 513 W.A.C. 44; 2011 BCCA 158, refd to. [para. 36].

R. v. Walker-King (K.), [2011] O.T.C. Uned. 4307; 2011 ONSC 4307, refd to. [para. 36].

R. v. Davis (S.J.), [2011] B.C.T.C. Uned. 146; 2011 BCSC 146, refd to. [para. 36].

R. v. Hassan, 2009 CarswellOnt 985 (C.J.), refd to. [para. 36].

R. v. Ward (D.J.) (2009), 286 B.C.A.C. 6; 484 W.A.C. 6; 2009 BCCA 556, refd to. [para. 36].

R. v. Boachie (B.), [2008] O.A.C. Uned. 236; 2008 ONCA 342, refd to. [para. 36].

R. v. Ryan (W.J.) (2006), 261 Nfld. & P.E.I.R. 326; 790 A.P.R. 326; 2006 NLTD 167, refd to. [para. 36].

R. v. Jackson (J.) (2002), 158 O.A.C. 289 (C.A.), refd to. [para. 36].

R. v. Canney (R.H.) (1995), 163 N.B.R.(2d) 161; 419 A.P.R. 161; 1995 CarswellNB 395 (C.A.), refd to. [para. 36].

R. v. Carvery (L.A.) (2012), 321 N.S.R.(2d) 321; 1018 A.P.R. 321; 2012 NSCA 107, refd to. [para. 56].

R. v. Lennard (J.W.), [2010] B.C.T.C. Uned. 1918; 2010 BCSC 1918, refd to. [para. 60].

Counsel:

Lisa M. Stead, for Her Majesty the Queen;

Randolph J. Piercey, Q.C., for the accused.

This sentencing matter was heard at St. John's, N.L., on October 8 and December 13, 2012, by Marshall, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision on February 28, 2013.