R. v. Leyte (B.I.), (2010) 293 Nfld. & P.E.I.R. 310 (NLCA)

• Judge: Welsh, Mercer and White, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: December 08, 2009
• Jurisdiction: Newfoundland and Labrador
• Citations: (2010), 293 Nfld. & P.E.I.R. 310 (NLCA);2010 NLCA 8

R. v. Leyte (B.I.) (2010), 293 Nfld. & P.E.I.R. 310 (NLCA);

    906 A.P.R. 310

MLB headnote and full text

Temp. Cite: [2010] Nfld. & P.E.I.R. TBEd. FE.019

Bruce Ives Leyte (appellant) v. Her Majesty the Queen as Represented by the Attorney General (respondent)

(09/47; 2010 NLCA 8)

Indexed As: R. v. Leyte (B.I.)

Newfoundland and Labrador Supreme Court

Court of Appeal

Welsh, Mercer and White, JJ.A.

February 9, 2010.

Summary:

The accused pleaded guilty to 13 criminal offences involving fraud, faked suicide and false identity and was sentenced. He appealed his sentence. The sole issue was whether the trial judge erred in declining to credit him with more than time served for his pre-sentence custody. The required leave to appeal was not disputed.

The Newfoundland and Labrador Court of Appeal granted leave to appeal. The Court of Appeal, White, J.A., dissenting in part, dismissed the appeal.

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5848.2 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The accused pleaded guilty to 13 criminal offences involving fraud, faked suicide and false identity and was sentenced to 23 months' imprisonment (5 months for the counts respecting bank fraud, 12 months for public mischief (faked suicide), 4 months for the counts concerning obtaining a birth certificate using the false identity and 3 months, 2 months and 2 months respectively for the counts concerning obtaining a provincial photo identification card, driver's licence and MCP card, the total reduced by 5 months for pre-sentence custody) - Upon arrest, the accused, a 57 year old repeat offender, had falsely claimed to be a police informant thereby necessitating a further police investigation - The charges arising from the accused obtaining false identity documents were not laid until the conclusion of the police investigation into his claim of being a police informant - The Newfoundland and Labrador Court of Appeal held that the trial judge did not err when she exercised her discretion not to credit the accused with more than time served for his pre-sentence custody - She properly considered the effect of the accused's statements to the police upon the length of his custody and the unlikelihood that he would benefit from rehabilitation programs - Alternatively, the court could, pursuant to s. 687(1) of the Criminal Code, decide not to alter the sentence despite a perceived error, where it found the sentence fit - Considering the offences and the accused's history, even giving double credit for pre-sentence custody, the 23 month sentence was fit.

Criminal Law - Topic 5859

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

Criminal Law - Topic 5869

Sentence - False pretences - [See Criminal Law - Topic 5848.2 ].

Criminal Law - Topic 5876

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

Criminal Law - Topic 5890

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

Cases Noticed:

R. v. Cooper (G.) (1997), 153 Nfld. & P.E.I.R. 106; 475 A.P.R. 106; 117 C.C.C.(3d) 249 (C.A.), refd to. [para. 7].

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. 8].

R. v. Provost (C.J.) (2006), 256 Nfld. & P.E.I.R. 205; 773 A.P.R. 205; 208 C.C.C.(3d) 393; 2006 NLCA 30, refd to. [para. 10].

R. v. Calder Berg (S.L.) (2007), 243 B.C.A.C. 179; 401 W.A.C. 179; 221 C.C.C.(3d) 449; 2007 BCCA 343, refd to. [para. 10].

R. v. Orr (C.) (2008), 251 B.C.A.C. 303; 420 W.A.C. 303; 228 C.C.C.(3d) 432; 2008 BCCA 76, refd to. [para. 10].

R. v. Rufus (J.P.) (2009), 276 B.C.A.C. 264; 468 W.A.C. 264; 2009 BCCA 419, refd to. [para. 10].

R. v. Sabourin (E.G.) (2009), 460 A.R. 118; 462 W.A.C. 118; 2009 NWTCA 6, refd to. [para. 10].

R. v. Vermette (I.M.) (2001), 156 Man.R.(2d) 120; 246 W.A.C. 120; 154 C.C.C.(3d) 193; 2001 MBCA 64, refd to. [para. 10].

R. v. Tschritter (S.M.) (2006), 224 B.C.A.C. 302; 370 W.A.C. 302; 2006 BCCA 202, refd to. [para. 10].

R. v. Jesso (H.) (2008), 274 Nfld. & P.E.I.R. 304; 837 A.P.R. 304; 2008 NLTD 36, refd to. [para. 17].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 112 C.C.C.(3d) 97 (C.A.), refd to. [para. 17].

R. v. Neudorf (T.J.) (2004), 200 B.C.A.C. 274; 327 W.A.C. 274; 187 C.C.C.(3d) 190; 2004 BCCA 374, refd to. [para. 23].

R. v. Sooch (S.S.) (2008), 433 A.R. 270; 429 W.A.C. 270; 234 C.C.C.(3d) 99 (C.A.), refd to. [para. 23].

Counsel:

Derek Hogan, for the appellant;

Stephen Dawson, for the respondent.

This appeal was heard on December 8, 2009, by Welsh, Mercer and White, JJ.A., of the Newfoundland and Labrador Court of Appeal. The court delivered the following reasons for judgment on February 9, 2010, including the following opinions:

Mercer, J.A. (Welsh, J.A., concurring) - see paragraphs 1 to 18;

White, J.A., dissenting in part - see paragraphs 19 to 28.