R. v. Holloway (P.S.), 2014 ABCA 87

• Judge: Berger, Watson and McDonald, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 06, 2014
• Citations: 2014 ABCA 87;(2014), 572 A.R. 121

R. v. Holloway (P.S.) (2014), 572 A.R. 121; 609 W.A.C. 121 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MR.021

Her Majesty the Queen (respondent) v. Patrick Striker Holloway (appellant)

(1301-0092-A; 2014 ABCA 87)

Indexed As: R. v. Holloway (P.S.)

Alberta Court of Appeal

Berger, Watson and McDonald, JJ.A.

March 6, 2014.

Summary:

The intoxicated accused participated with others in the victim's fatal beating. The accused punched and kicked the victim, struck him with a beer bottle, and stabbed him in the heart with a butter knife. The trial judge sentenced the accused to eight years' imprisonment, less 27 months' credit for pre-trial custody on a 1.0 to 1.0 basis. The accused appealed against sentence. He argued that the trial judge erred in failing to give him 1.5 to 1.0 credit for pre-trial custody and that the eight year sentence was demonstrably unfit. Respecting the second ground, the accused argued that the trial judge stepped away from a proper range of sentence, failed to give proper effect to his status as a 22 year old aboriginal attempting to control his substance abuse, and that the trial judge's reasons for judgment failed to meet the requirements of s. 726.2 of the Criminal Code or adequately rationalize the sentence chosen. The Crown served notice under rule 853 that it was seeking to have the sentence increased to 10 years' imprisonment or more.

The Alberta Court of Appeal, Berger, J.A., dissenting, dismissed the accused's appeal and the Crown's request for a greater sentence. There was no error in limiting credit for pre-trial custody to a 1.0 to 1.0 basis, adequate reasons for judgment were provided, there was nothing in the accused's aboriginal heritage or experience that would justify any major departure from what was an appropriate sentence, and the sentence imposed was not manifestly unfit. Berger, J.A., would have reduced the sentence to six years' imprisonment and given the accused credit for pre-trial custody on a 1.5 to 1.0 basis, on the basis that the failure to give proper weight to the accused's aboriginal circumstances and his diminished intellectual capacity warranted appellate intervention.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See Criminal Law - Topic 5846.5 ].

Criminal Law - Topic 5810.2

Sentencing - Sentencing procedure and rights of the accused - Reasons for sentence - An accused sentenced to eight years' imprisonment for manslaughter appealed on the ground that the trial judge's oral reasons for judgment failed to meet the requirements of s. 726.2 of the Criminal Code or adequately rationalize the sentence chosen - The Alberta Court of Appeal stated that "We do not find it necessary to provide a lengthy disquisition on the topic of what degree of reasons would meet the requirements of s. 726.2 of the Code. We agree with counsel that in light of the important social policies in cases of manslaughter, and in light of the direction of Parliament, the duty of trial judges is to do the best they can to provide reasons which meet the three functions of reasons as discussed in R v Sheppard ...; R v Teskey ...; R. v M(RE) ... . For the purposes of appellate review, the main effect of inadequate reasons is the removal of the principal reason for deference, but a failure of real accountability is a far worse consequence of shortcomings in reasons. Sentencing judges are not speaking only to the Court of Appeal. In this case, we are not persuaded, however, that the sentencing judge's reasons are so deficient as to give rise by themselves to a basis to alter the sentence below." - See paragraphs 38, 39.

Criminal Law - Topic 5834.7

Sentencing - Considerations on imposing sentence - Mental illness or disorder - [See Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - An aboriginal accused sentenced to eight years' imprisonment for manslaughter appealed against sentence on the ground that the trial judge failed to give proper effect to his status as a 22 year old aboriginal attempting to control his substance abuse, and his limited intellectual abilities (borderline range of cognitive ability) - Other than the accused's alcoholism dating from age 12, and the effect on his already limited cognitive abilities, the accused could point to nothing else pertaining to his aboriginal background which would enlighten the court on what was a proportionate sentence - The Alberta Court of Appeal rejected this ground of appeal - The Criminal Code did not suggest that there should be a discount from a proportional sentence "automatically" because the offender was an aboriginal person - The court stated that "We are unable to discern anything from the circumstances of the appellant as an aboriginal person which would justify any major departure from a proportionate sentence as informed by whatever evidence there may be of an appropriate range of sentence for manslaughter in a case like the present one." - See paragraphs 40 to 43.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - For purposes of sentencing for manslaughter, the Court of Appeal in R. v. Laberge (1995), categorized manslaughter on a spectrum ranging from "near accident" to "near murder" - The Alberta Court of Appeal stated that "Laberge is not a 'starting point' case. It is a categorization case." - The court stated that "Proportionality is the fundamental principle applied in the search for a just sanction to maintain the public's confidence in the credibility, the predictability and the accountability of the administration of criminal justice in relation to the crime of manslaughter for which Parliament has provided a scope of discretion up to life imprisonment (with some minimum sentences not applicable here). The approach in Laberge was directly aimed at assisting courts in determining that properly proportionate outcome as against appreciable common standards of culpability and responsibility and as against the practice of courts across Canada. Even before s. 718.2 of the Code expressly identified the principle of parity of sentencing, there can be no doubt that Courts across have sought over many years to develop analysis for differing forms of manslaughter that reflect the aggravating and mitigating circumstances in a coherent manner. ... for a sentencing judge to reach a conclusion in a manslaughter case without resort to either starting points or to categorization, and perhaps even without resort to relevant ranges of comparable cases, would make it difficult for the enlightened citizen to distinguish the decision from casuistry." - See paragraphs 25, 26, 57.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - An accused sentenced to eight years' imprisonment for manslaughter was given 1.0 to 1.0 credit for pre-trial custody - The accused argued that the trial judge erred in putting the burden on him to establish the "special circumstances" required to depart from the normal 1.0 to 1.0 credit - The Alberta Court of Appeal rejected the argument - The court stated that "We are not persuaded that the sentencing judge fettered her discretion by a notion that in order to escalate the credit for the 27 months of pre-sentence custody, the appellant was required to prove exceptional circumstances. We interpret her decision to mean that the argument that exceptional circumstances were not required was 'a valid one, but I will leave that up to the Court of Appeal'. She did not in our view mean that time served must be calculated at 1 to 1 unless dislodged by more than a rational basis. As this Court said in Johnson, the Code merely requires that the circumstances 'justify' enhanced credit. As for whether the appellant showed a justification for enhanced credit, we note that counsel for the appellant has provided an analysis drawn from R v Stonefish, 2012 MBCA 116, 99 CR 6th 41 to the effect that the vast majority of persons sentenced to imprisonment earn some measure of credit beyond 1 to 1 for each day served under the Corrections and Conditional Release Act or the Prisons and Reformatories Act. We agree with the appellant's counsel that the period of pre-sentence custody is not short at 27 months, and that the appellant was when taken into custody a comparatively young person at 22. On the other hand, the appellant had a prior record which included convictions for assaults, was regarded as a moderate to high risk to re-offend, had suffered intellectual deficits and, sadly, had a rather entrenched substance abuse problem at least since his teen years. Based on the material before the sentencing judge, there is no clear indication how the parole authorities would have assessed eligibility at the front end of his sentence." - See paragraphs 29 to 33.

Criminal Law - Topic 5882

Sentence - Manslaughter - The intoxicated accused participated with others in the victim's fatal beating - The accused punched and kicked the victim, struck him with a beer bottle, and stabbed him in the heart with a butter knife - The trial judge sentenced the accused to eight years' imprisonment, less 27 months' credit for pre-trial custody on a 1.0 to 1.0 basis - The accused appealed against sentence - He argued that the trial judge erred in failing to give him 1.5 to 1.0 credit for pre-trial custody and that the eight year sentence was demonstrably unfit - Respecting the second ground, the accused argued that the trial judge stepped away from a proper range of sentence, failed to give proper effect to his status as a 22 year old aboriginal attempting to control his substance abuse, and that the trial judge's sparse reasons failed to meet the requirements of s. 726.2 of the Criminal Code or adequately rationalize the sentence chosen - The Crown served notice under rule 853 that it was seeking to have the sentence increased to 10 years' imprisonment or more - The Alberta Court of Appeal dismissed the accused's appeal and the Crown's request for a greater sentence - There was no error in limiting credit for pre-trial custody to a 1.0 to 1.0 basis, adequate reasons for judgment were provided, there was nothing in the accused's aboriginal heritage or experience that would justify any major departure from what was an appropriate sentence, and the sentence imposed was not manifestly unfit - Berger, J.A.,dissenting, would have reduced the sentence to six years' imprisonment and given the accused credit for pre-trial custody on a 1.5 to 1.0 basis, on the basis that the failure to give proper weight to the accused's aboriginal circumstances and his diminished intellectual capacity warranted appellate intervention.

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Counsel:

B.R. Graff, for the respondent;

A. Hepner, Q.C., for the appellant.

This appeal was heard on September 24, 2013, at Calgary, Alberta, before Berger, Watson and McDonald, JJ.A., of the Alberta Court of Appeal.

On March 6, 2014, the judgment of the Court was delivered and the following memorandums of judgment were filed:

Watson and McDonald, JJ.A. - see paragraphs 1 to 59;

Berger, J.A., dissenting - see paragraphs 60 to 115.