R. v. Hoben (B.J.), (2016) 381 Nfld. & P.E.I.R. 165 (NLPC)

• Judge: Porter, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: April 06, 2016
• Jurisdiction: Newfoundland and Labrador
• Citations: (2016), 381 Nfld. & P.E.I.R. 165 (NLPC)

R. v. Hoben (B.J.) (2016), 381 Nfld. & P.E.I.R. 165 (NLPC);

    1181 A.P.R. 165

MLB headnote and full text

Temp. Cite: [2016] Nfld. & P.E.I.R. TBEd. AP.013

Her Majesty the Queen v. Barry Joseph Hoben

(Docket: 0815A00164, 0815A00165, 0815A00192, 0815A00193)

Indexed As: R. v. Hoben (B.J.)

Newfoundland and Labrador Provincial Court

Porter, P.C.J.

April 11, 2016.

Summary:

The accused pleaded guilty to six offences, and a joint submission as to sentence was made. The joint submission took the proposed sentence out of the usual range for the offences.

The Newfoundland and Labrador Provincial Court endorsed the joint submission, following the direction of the Newfoundland and Labrador Court of Appeal to the effect that joint submissions on sentence ought to be endorsed, even when the result was outside the usual range of sentence for the offences.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - [See second Criminal Law - Topic 5874 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents - Sentencing ranges - [See second Criminal Law - Topic 5874 ].

Criminal Law - Topic 5874

Sentence - Manufacture, distribution or possession of obscene matter (incl. child pornography) - The Newfoundland and Labrador Provincial Court reviewed case law respecting sentencing for possession and distribution of child pornography - The court stated that "This relatively small sample of jurisprudence indicates that the usual sentence for possession of child pornography ranges from 15 to 18 months, while sentences for distributing child pornography (or making it available to others) range from 18 to 24 months. It is only when the accused is a repeat offender have sentences of more than 2 years been imposed." - See paragraphs 36 to 52.

Criminal Law - Topic 5874

Sentence - Manufacture, distribution or possession of obscene matter (incl. child pornography) - The accused pleaded guilty to two counts of distributing child pornography, one count of possession of child pornography, two counts of assaulting a peace officer, and one count of resisting a police officer - The accused claimed that, as a victim of sexual abuse as a child himself, he identified with the children shown in the child pornography which he was distributing and which was found in his possession - When he was arrested, he kicked two police officers, and resisted the efforts of a third police officer to bring the situation under control - A joint submission was made for 21 months' imprisonment, followed by two years' probation, and ancillary orders - The Newfoundland and Labrador Provincial Court, held that, even though the proposed sentence was outside of the usual range for the offences, he had to endorse it - The court followed the direction of the Newfoundland and Labrador Court of Appeal to the effect that joint submissions on sentence ought to be endorsed, even when the result was outside the usual range - The court stated that "Despite the repeated pronouncements from the Supreme Court of Canada as to sentence being within the discretion of the trial judge, in this province, when there is a joint submission, the trial judge has no discretion." - See paragraphs 1 to 70.

Criminal Law - Topic 5888

Sentence - Particular offences - Resisting or obstructing a peace officer - The accused pleaded guilty to two counts of distributing child pornography, one count of possession of child pornography, two counts of assaulting a peace officer, and one count of resisting a police officer - The Newfoundland and Labrador Provincial Court discussed the sentencing range for assault of peace officers - While the Criminal Code provided a maximum sentence of five years' imprisonment (s. 270), the court was not aware of any case where that sentence had been imposed - Section 718.02 directed that where the offence was assaulting a peace officer in the execution of his or her duty, the court had to give primary consideration to the objectives of denunciation and deterrence - The court held that the 90 day sentence suggested by counsel for the assault on the police officers was within the range set out in the jurisprudence - See paragraphs 53 to 58.

Counsel:

A. Manning, for the Crown;

M. Evans, Q.C., for the accused.

This case was heard on April 6, 2016, by Porter, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision on April 11, 2016.