R. v. Joe (P.), 2005 YKCA 9

• Judge: Finch, C.J.B.C., Newbury and Kirkpatrick, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: September 12, 2005
• Jurisdiction: Yukon
• Citations: 2005 YKCA 9;(2005), 217 B.C.A.C. 270 (YukCA)

R. v. Joe (P.) (2005), 217 B.C.A.C. 270 (YukCA);

    358 W.A.C. 270

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. OC.041

Regina (appellant) v. Philip Joe (respondent)

(04-YU526; 2005 YKCA 9)

Indexed As: R. v. Joe (P.)

Yukon Court of Appeal

Finch, C.J.B.C., Newbury and Kirkpatrick, JJ.A.

October 21, 2005.

Summary:

The aboriginal accused was convicted of assault while carrying a weapon, unlawful confinement and uttering a threat to cause bodily harm. The trial judge sentenced the accused to six months in custody for the assault, to be followed by a six month conditional sentence for the unlawful confinement. The judge suspended passing sentence for uttering the threat, but ordered a period of 18 months' probation to follow completion of both the custodial and conditional sentences. The Crown appealed.

The Yukon Court of Appeal dismissed the appeal.

Criminal Law - Topic 5720.1

Punishments (sentence) - Conditional sentence - General (incl. blended sentences) - The Yukon Court of Appeal held that it was not an error of principle to order both custodial and conditional sentences for offences arising from the same circumstances, provided that the global sentence did not exceed two years less a day, the custodial and conditional sentences were not ordered to be served concurrently and the requirements of s. 742.1(b) (community's safety not endangered and sentence consistent with purposes and principles of sentencing) were satisfied in respect of one or more of the offences - See paragraph 30.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5868 ].

Criminal Law - Topic 5868

Sentence - Forcible confinement - After an evening of drinking at his home, the 33 year old aboriginal accused attempted to remove the female victim's pants - The victim kicked and yelled at him - He then uttered a series of threats while holding various weapons - He threatened, inter alia, to rape, kill and cut her up - When she attempted to leave, he blocked her exit while holding a knife - He was convicted of assault while carrying a weapon, unlawful confinement and uttering a threat to cause bodily harm - Alcoholic - Grade nine education - Never had full-time employment - The trial judge sentenced the accused to six months in custody for the assault, to be followed by a six month conditional sentence for the unlawful confinement - The judge suspended passing sentence for uttering the threat, but ordered a period of 18 months' probation to follow completion of both the custodial and conditional sentences - The Crown appealed, arguing, that because the assault and unlawful confinement arose from the same circumstances, the risk to the community was present at the time of sentencing in both cases - The Yukon Court of Appeal dismissed the appeal - The global sentence was not unfit - The trial judge did not commit an error of principle in imposing a conditional sentence consecutive to the custodial sentence - The question was whether the accused would pose a risk to the community while serving the sentence in the community - The trial judge fashioned a sentence designed to serve both the short and long term safety concerns of the community, as well as the obvious need to deter and denounce the accused's conduct - See paragraphs 31 to 39.

Criminal Law - Topic 5883

Sentence - Assault with a weapon - [See Criminal Law - Topic 5868 ].

Criminal Law - Topic 5895

Sentence - Threats - [See Criminal Law - Topic 5868 ].

Cases Noticed:

R. v. Nadolnick (M.P.) et al. (2003), 339 A.R. 348; 312 W.A.C. 348; 2003 ABCA 363, refd to. [para. 21].

R. v. Ploumis (F.) (2000), 140 O.A.C. 88; 150 C.C.C.(3d) 424 (C.A.), refd to. [para. 24].

R. v. Alfred (A.) (1998), 105 O.A.C. 373; 122 C.C.C.(3d) 213 (C.A.), refd to. [para. 26].

R. v. R.A.R., [2000] 1 S.C.R. 163; 249 N.R. 322; 142 Man.R.(2d) 282; 212 W.A.C. 282; 2000 SCC 8, refd to. [para. 29].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 31].

R. v. Knoblauch (W.L.), [2000] 2 S.C.R. 780; 262 N.R. 1; 271 A.R. 1; 234 W.A.C. 1; 2000 SCC 58, refd to. [para. 33].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 39].

R. v. Shoker (H.S.) (2004), 206 B.C.A.C. 266; 338 W.A.C. 266; 2004 BCCA 643, leave to appeal granted (2005), 345 N.R. 394 (S.C.C.), refd to. [para. 41].

Counsel:

D.A. McWhinnie, for the appellant;

G.R. Coffin, for the respondent.

This appeal was heard on September 12, 2005, at Vancouver, British Columbia, by Finch, C.J.B.C., Newbury and Kirkpatrick, JJ.A., of the Yukon Court of Appeal. Finch, C.J.B.C., delivered the following reasons for judgment for the court on October 21, 2005.