R. v. Hoyles (P.J.E.), (2015) 373 Nfld. & P.E.I.R. 243 (NLTD(G))

• Judge: Furey, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: October 18, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 373 Nfld. & P.E.I.R. 243 (NLTD(G))

R. v. Hoyles (P.J.E.) (2015), 373 Nfld. & P.E.I.R. 243 (NLTD(G));

    1161 A.P.R. 243

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. NO.035

Her Majesty the Queen v. Peter Jacob Enoil Hoyles

(201504G0098; 2015 NLTD(G) 164)

Indexed As: R. v. Hoyles (P.J.E.)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Furey, J.

November 6, 2015.

Summary:

In June 2013, the accused, who was 32/33 years old, had sex three times with a girl (LM) who was 13/14years old. At the time, the accused was on a recognizance, with one of the conditions being not to have any contact with anyone under the age of 16. The accused pleaded guilty to sexual assault and breach of a recognizance. The Crown and defence made a joint submission on sentence.

The Newfoundland and Labrador Supreme Court, Trial Division (General), accepted the joint submission and imposed: (1) three years for sexual assault; and (2) 30 days' concurrent for failure to comply with a condition of a recognizance by having contact in person and by text messaging with LM. The court reduced the sentence by 536 days for credit for pretrial custody. The court also made ancillary orders.

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 4965.2

Appeals - Indictable offences - New trials - Where sentence served or partially served - [See first Criminal Law - Topic 5848.2 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused sought enhanced credit for pretrial custody - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that "Since January 17, 2014, the Offender has been in custody for various reasons, including: 1. his arrest on the offences now before this Court; 2. his remand by the Provincial Court on the offences now before this Court; 3. his conviction in the Supreme Court on other offences and his remand by the Supreme Court while awaiting sentence; 4. his sentence imposed by the Supreme Court; 5. his sentence imposed by the Provincial Court on other offences; and 6. his continuing remand once the Supreme Court convictions and sentence were set aside on appeal and the Provincial Court sentence was served. Counsel for the Offender referred to his client as having a dual status during this time - he was on remand and he was serving a sentence. The result of the Offender's successful appeal of his convictions in the Supreme Court is that the convictions were set aside and a new trial was ordered. ... [T]he effect of this is that the sentence the Offender was serving was wiped out or nullified. Arguably, the charges that were dealt with in the other Supreme Court matter are still 'live' because the Court of Appeal ordered a new trial but the process has to start from the beginning. That leaves the Offender in custody solely on remand arising from the offences now before this Court. In other words, the Offender has been in custody because of the offences on which he is to be sentenced." - The court found that the accused should receive 1:1 credit for pretrial custody - Thus, for the period from January 17, 2014 to November 6, 2015 (sentencing) minus the period from March 23 to July 23, 2015 (when he was serving the Provincial Court sentence), he should receive credit for 536 days (658 -122 = 536) - See paragraphs 35 to 57.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused sought enhanced credit for pretrial custody under s. 719(3.1) of the Criminal Code - The Newfoundland and Labrador Supreme Court, Trial Division (General), found "no circumstances present to justify enhanced credit as contemplated by s. 719(3.1). The Offender was in custody because of his remand on the offences which are before this Court, because of his remand for sentencing on the convictions for the other offences in the Supreme Court, his serving of the sentence that followed from those convictions as well as for a period of time when he was serving a sentence following from his convictions imposed by the Provincial Court. The Offender had the opportunity to participate in programming (which he did) ... while he was serving the sentence imposed by the Supreme Court. ... [I]n the unique circumstances of this matter, the Offender would not have had any opportunity to seek bail until July 23, 2015 (when the Provincial Court sentence was served). He did not avail of that opportunity and he chose to remain in custody." - See paragraph 58.

Criminal Law - Topic 5848.9

Sentencing - Considerations - Sexual offences against children - In June 2013, the accused, who was 32/33 years old, had sex three times with a girl (LM), who was 13/14 years old - At the time, he was on a recognizance, with one of the conditions being not to have any contact with anyone under the age of 16 - The accused pleaded guilty to sexual assault and breach of a recognizance - No criminal record for sexual offences - LM had some history of mental health issues - The accused lured and groomed her by text messaging - The Newfoundland and Labrador Supreme Court, Trial Division (General), accepted a joint submission on sentence and, before credit for pretrial custody, imposed: (1) three years for sexual assault; and (2) 30 days' concurrent for failure to comply with the condition of the recognizance by having contact in person and by text messaging with LM - The sentence suggested in the joint submission would not bring the administration of justice into disrepute or otherwise be contrary to the public interest - While it was at the low end of the sentence range, it was still within the general range for sentences imposed on similar offenders for similar offences committed in similar circumstances - See paragraphs 1 to 34.

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - [See Criminal Law - Topic 5848.9 ].

Cases Noticed:

R. v. K.J.A. (1988), 69 Nfld. & P.E.I.R. 99; 211 A.P.R. 99; 4 W.C.B.(2d) 348 (Nfld. C.A.), refd to. [para. 6].

R. v. Druken (J.K.) (2006), 261 Nfld. & P.E.I.R. 271; 790 A.P.R. 271; 215 C.C.C.(3d) 394; 2006 NLCA 67, refd to. [para. 25].

R. v. J.B. (2013), 341 Nfld. & P.E.I.R. 329; 1061 A.P.R. 329; 2013 NLCA 61, refd to. [para. 27].

R. v. Barrett (A.W.) (2012), 324 Nfld. & P.E.I.R. 246; 1007 A.P.R. 246; 2012 NLCA 46, refd to. [para. 29].

R. v. A.B. (2015), 365 Nfld. & P.E.I.R. 160; 1138 A.P.R. 160; 2015 NLCA 19., refd to. [para. 30].

R. v. Wilson (R.) (2008), 240 O.A.C. 59; 2008 ONCA 510, refd to. [para. 23].

R. v. Keepness (S.C.) (2014), 446 Sask.R. 125; 621 W.A.C. 125; 2014 SKCA 110, refd to. [para. 40].

R. v. MacLeod (J.M.) (2013), 297 Man.R.(2d) 215; 2013 MBQB 242, refd to. [para. 41].

R. v. Scott (J.F.) (2014), 359 Nfld. & P.E.I.R. 179; 1117 A.P.R. 179; 121 W.C.B.(2d) 609 (N.L. Prov. Ct.), refd to. [para. 45].

R. v. Summers (S.), [2014] 1 S.C.R. 575; 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, consd. [para. 56].

Counsel:

John Noseworthy, for the Crown;

Jamie Luscombe, for the offender.

This sentencing matter was heard on October 18, 2015, by Furey, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered an oral decision on November 6, 2015, and the following written reasons on November 18, 2015.