R. v. Maier (A.S.), 2015 ABCA 59

• Judge: McDonald, O'Ferrall and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 27, 2015
• Citations: 2015 ABCA 59;(2015), 599 A.R. 64

R. v. Maier (A.S.) (2015), 599 A.R. 64; 643 W.A.C. 64 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.047

Her Majesty the Queen (respondent) v. Andrew Shawn Maier (appellant)

(1401-0175-A; 2015 ABCA 59)

Indexed As: R. v. Maier (A.S.)

Alberta Court of Appeal

McDonald, O'Ferrall and Veldhuis, JJ.A.

February 11, 2015.

Summary:

The accused pleaded guilty to one count of common assault and two counts of failure to appear in court. The trial judge held that the fact that the accused knew that he was HIV positive at the time that he spit in the victim's face and chest (the assault) and his extensive criminal record were aggravating factors and sentenced the accused to two years' imprisonment less 15 days for pretrial custody for the assault and 30 days concurrent for each of the failures to appear. The accused appealed the sentences for assault and one of the counts of failure to appear. He asserted that his guilty plea for his failure to appear on April 14, 2014, should be set aside and an acquittal entered as he had not appreciated that he could not have been convicted of the offence. He applied to admit fresh evidence in the form of an agreed statement of fact which indicated that he had a complicated psychiatric history including schizophrenia, and at the time of the failure to appear on April 14, 2014, he had been held in hospital under a Form 10 health warrant. The evidence also confirmed that he had not been a carrier of HIV at the time of the offence and his previous Hep-C infection had been treated making the risk of transmission approach zero. The Crown consented to the admission of the fresh evidence and conceded that the conviction should be set aside and the accused sentenced afresh.

The Alberta Court of Appeal, O'Ferrall, J.A., dissenting, admitted the fresh evidence, vacated the guilty plea for the failure to appear on April 14, 2014, entered an acquittal for that offence and set aside the corresponding sentence. The court dismissed the appeal from the sentence for the second count of failure to attend, but allowed the appeal respecting the sentence for the assault and substituted a sentence of 20 months' imprisonment.

Criminal Law - Topic 5830

Sentencing - Considerations on imposing sentence - General - Step or jump principle - The accused pleaded guilty to, inter alia, common assault (he spit in the victim's face and chest) and failure to appear in court - The trial judge held that the accused's knowledge that he was HIV positive and his extensive criminal record were aggravating factors and sentenced him to two years' imprisonment less 15 days for pretrial custody for the assault and 30 days concurrent for the failure to appear - The accused appealed the sentence - Fresh evidence indicated that the accused had a complicated psychiatric history including schizophrenia, and at the time of the failure to appear he had been held in hospital under a Form 10 health warrant - The evidence also confirmed that he had not been a carrier of HIV at the time of the assault - The Alberta Court of Appeal held that the accused's mental health issue was not a mitigating factor because he had consistently refused to comply with treatment - The trial judge did rely on what turned out to be a non-existent aggravating factor (that the accused was HIV positive) - However, the assault on the innocent victim was degrading and reprehensible and caused her extra stress until she was advised that the accused had not been HIV positive - Notwithstanding the Crown's position (a sentence of 16 to 18 months), an appropriate sentence was 20 months' imprisonment for the assault - This was consistent with the jump principle (the accused's last two assault convictions resulted in a sentence of 18 months plus six months' consecutive) - The court affirmed the sentence for failure to appear.

Criminal Law - Topic 5834.2

Sentencing - Considerations on imposing sentence - Effect on victim - [See Criminal Law - Topic 5830 ].

Criminal Law - Topic 5834.7

Sentencing - Considerations on imposing sentence - Mental illness or disorder - [See Criminal Law - Topic 5830 ].

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - The Alberta Court of Appeal stated that "It is entirely appropriate for the sentencing judge (either in the court below or in this court) to refer to the appellant's extensive criminal record. This is not to say that the appellant is to be resentenced for those past offences; rather in a case such as this, a lengthy criminal record makes more important certain sentencing objectives, such as denunciation and the need to separate an offender from society when necessary." - See paragraph 30.

Criminal Law - Topic 5849.7

Sentencing - Considerations on imposing sentence - Representations of counsel - [See Criminal Law - Topic 5830 ].

Criminal Law - Topic 5861

Sentence - Assault (inc. common assault) - [See Criminal Law - Topic 5830 ].

Criminal Law - Topic 5921

Sentence - Being at large or failing to appear - [See Criminal Law - Topic 5830 ].

Cases Noticed:

R. v. Brown (A.T.) (2005), 376 A.R. 84; 360 W.A.C. 84; 2005 ABCA 431, refd to. [para. 17].

R. v. Koppang (C.E.) (2002), 317 A.R. 234; 284 W.A.C. 234; 2002 ABCA 295, refd to. [para. 17].

R. v. Tremblay (W.D.) (2006), 401 A.R. 9; 391 W.A.C. 9; 2006 ABCA 252, refd to. [paras. 31, 53].

R. v. Ayorech (C.D.) (2012), 522 A.R. 306; 544 W.A.C. 306; 2012 ABCA 82, refd to. [paras. 31, 53].

R. v. Diebel (A.L.) (2007), 422 A.R. 377; 415 W.A.C. 377; 2007 ABCA 418, refd to. [paras. 38, 53].

R. v. Taylor (1975), 24 C.C.C.(2d) 551 (Ont. C.A.), refd to. [para. 53].

R. v. Moreau (M.) (1992), 49 Q.A.C. 239; 76 C.C.C.(3d) 181 (C.A.), refd to. [para. 53].

R. v. H.M.T. (2004), 373 A.R. 197; 2004 ABQB 743, refd to. [para. 53].

R. v. Hiltermann (S.G.) (1993), 141 A.R. 223; 46 W.A.C. 223; 20 W.C.B.(2d) 508 (C.A.), refd to. [para. 54].

Counsel:

A.L. Serink, for the appellant;

J.B. Hawkes, Q.C., for the respondent.

This application and appeal were heard on January 27, 2015, by McDonald, O'Ferrall, and Veldhuis, JJ.A., of the Alberta Court of Appeal. The memorandum of judgment of the court was filed at Calgary, Alberta, on February 11, 2015, which included the following opinions:

McDonald and Veldhuis, JJ.A. - see paragraphs 1 to 43;

O'Ferrall, J.A., dissenting - see paragraphs 44 to 61.