R. v. Jesso (H.), (2008) 274 Nfld. & P.E.I.R. 304 (NLTD)

• Judge: Hoegg, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: February 26, 2008
• Jurisdiction: Newfoundland and Labrador
• Citations: (2008), 274 Nfld. & P.E.I.R. 304 (NLTD)

R. v. Jesso (H.) (2008), 274 Nfld. & P.E.I.R. 304 (NLTD);

    837 A.P.R. 304

MLB headnote and full text

Temp. Cite: [2008] Nfld. & P.E.I.R. TBEd. FE.033

Her Majesty The Queen v. Hector Jesso

(200601T0707; 2008 NLTD 36)

Indexed As: R. v. Jesso (H.)

Newfoundland and Labrador Supreme Court

Trial Division

Hoegg, J.

February 26, 2008.

Summary:

The accused was convicted by a jury of the indictable offence of assault. At issue was the appropriate sentence and credit for pre-trial custody.

The Newfoundland and Labrador Supreme Court, Trial Division, sentenced the accused to four years' imprisonment. The court declined to give the accused double credit for a lengthy period of pre-trial custody. Credit was limited to the time spent in pre-trial custody.

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 5848.2

Sentencing - Considerations on imposing sentence - Time already served - In May 2005, the now 61 year old accused committed an unprovoked assault on a woman who was a guest in his home - He held her against the wall by her throat for five minutes, threatening to kill her if she moved - When he released her, he grabbed her from behind as she attempted to exit, putting her to the floor - She got free - Twice more she was restrained and managed to break free - He again grabbed her throat and punched her in the face - The assault lasted 30 minutes - The accused had a lengthy criminal record for serious offences, including prior assaults - He had been incarcerated for a significant portion of the last 35 years - The accused was not remorseful and there was little chance of rehabilitation - The Newfoundland and Labrador Supreme Court, Trial Division, sentenced the accused to four years' imprisonment, less straight credit for a significant period of pre-trial custody - The court refused to give the normal double credit for time served, where the accused was primarily at fault for remaining in custody since his arrest (postponements, untimely application for bail, discharged three counsel and one counsel withdrew) - The Crown had been ready for trial since the spring of 2006 - Further, the court stated that "given that one of the rationales for giving double credit for time served on remand is that an offender can avail of the benefits of statutory release programs or early parole, I am not prepared to compensate [the accused] for the loss of a benefit he would be unlikely to gain".

Criminal Law - Topic 5861

Sentence - Assault - [See Criminal Law - Topic 5848.2 ].

Cases Noticed:

R. v. Gauthier (T.J.) (1996), 78 B.C.A.C. 85; 128 W.A.C. 85; 1996 CarswellBC 1587 (C.A.), refd to. [para. 3].

R. v. Englehart (A.) (1998), 199 N.B.R.(2d) 375; 510 A.P.R. 375; 124 C.C.C.(3d) 505 (C.A.), refd to. [para. 3].

R. v. Wust (L.W.) et al., [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236, refd to. [para. 17].

R. v. Zeplin (G.) (1998), 165 Nfld. & P.E.I.R. 306; 509 A.P.R. 306; 1998 CarswellNfld 173 (C.A.), refd to. [para. 18].

R. v. Dodd (B.) (1999), 180 Nfld. & P.E.I.R. 145; 548 A.P.R. 145 (Nfld. C.A.), refd to. [para. 18].

R. v. Provost (C.J.) (2006), 256 Nfld. & P.E.I.R. 205; 773 A.P.R. 205; 2006 CarswellNfld 147 (C.A.), refd to. [para. 18].

R. v. Cooper (D.L.) (2002), 221 Nfld. & P.E.I.R. 143; 661 A.P.R. 143; 2002 CarswellNfld 369 (T.D.), refd to. [para. 19].

R. v. E.E.D. (2007), 304 Sask.R. 192; 413 W.A.C. 192; 2007 CarswellSask 526 (C.A.), refd to. [para. 25].

R. v. Tschritter (S.M.), [2006] B.C.W.L.D. 3373; 224 B.C.A.C. 302; 370 W.A.C. 302; 2006 BCCA 202, refd to. [para. 28].

Counsel:

Frances Knickle, for the Crown;

Jeff Brace, for the accused.

This case was heard on February 26, 2008, at St. John's, Nfld. and Lab., before Hoegg, J., of the Newfoundland and Labrador Supreme Court, Trial Division, whose oral judgment of February 26, 2008, was filed on February 28, 2008.