R. v. Muise (D.R.) (No. 4), (1994) 135 N.S.R.(2d) 81 (CA)

• Judge: Hallett, Matthews and Roscoe, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 01, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 135 N.S.R.(2d) 81 (CA);1994 CanLII 4074 (NS CA);94 CCC (3d) 119;[1994] NSJ No 487 (QL);135 NSR (2d) 81;25 WCB (2d) 301

R. v. Muise (D.R.) (1994), 135 N.S.R.(2d) 81 (CA);

  386 A.P.R. 81

MLB headnote and full text

Darren Richard Muise (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. No. 02916)

Indexed As: R. v. Muise (D.R.) (No. 4)

Nova Scotia Court of Appeal

Hallett, Matthews and Roscoe, JJ.A.

November 1, 1994.

Summary:

The accused was charged with two counts of first degree murder, robbery and unlawful confinement. The accused pleaded guilty to one count of second degree murder and robbery. The remaining two charges were dismissed.

The Nova Scotia Supreme Court, in a judgment reported 124 N.S.R.(2d) 105; 345 A.P.R. 105, sentenced the accused to life impris­onment without eligibility for parole for 20 years for murder and nine years' imprison­ment (con­current) for robbery. The accused appealed his sentence for murder, but later abandoned the appeal. The Crown cross-appealed the period of parole ineligi­bility.

The Nova Scotia Court of Appeal, Mat­thews, J.A., dissenting, dismissed the cross-appeal.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibil­ity - [See Criminal Law - Topic 5881 ].

Criminal Law - Topic 5881

Sentence - Murder - The 18 year old accused and two others planned to rob a MacDonald's restaurant - Three persons were shot to death and one remained per­manently disabled - The accused pleaded guilty to second degree murder respecting one of the victims and robbery - The accused had not carried the gun or shot anyone, but did slash the throat of one of the victim's who had been shot but was still alive - The accused was an "undi­rected teenager" who left school in grade 12, was unemployed and had no criminal record or history of trouble - The incident was out of character - The accused's con­duct during and after the murders showed a lack of conscience and remorse - The trial judge sentenced the accused to life imprisonment without eligibility for parole for 20 years for sec­ond degree murder - The Nova Scotia Court of Appeal dis­missed a Crown cross-appeal to increase the period of parole ineligibility - The trial judge did not err in principle and the 20 year period was not so clearly inad­equate as not to be a fit sentence - See para­graphs 73 to 91.

Criminal Law - Topic 6207

Sentencing - Appeals - Variation of sen­tence - Parole - The Nova Scotia Court of Appeal stated that the court's function in considering the fitness of a period of parole ineligibility imposed by a trial judge was to apply the same principles guiding the court on sentence appeals generally - The court will not interfere with a period of parole ineligibility unless it was clearly inadequate or too long - The court stated that "neither a sentencing judge nor this court can be expected to do more than compose a period of parole ineligibility that is within an acceptable range" - See paragraphs 73 to 91.

Cases Noticed:

R. v. Mitchell (1987), 81 N.S.R.(2d) 57; 203 A.P.R. 57; 39 C.C.C.(3d) 141 (C.A.), refd to. [para. 17].

R. v. Laidlaw (1989), 93 N.S.R.(2d) 333; 242 A.P.R. 333 (C.A.), refd to. [para. 17].

R. v. Doyle (1991), 108 N.S.R.(2d) 1; 294 A.P.R. 1 (C.A.), refd to. [para. 17].

R. v. Baillie (1992), 107 N.S.R.(2d) 256; 290 A.P.R. 256 (C.A.), refd to. [para. 17].

R. v. Fadelle (1994), 127 N.S.R.(2d) 227; 355 A.P.R. 227 (C.A.), refd to. [para. 17].

R. v. Gourgon (1981), 58 C.C.C.(2d) 193 (B.C.C.A.), refd to. [para. 19].

R. v. Walford (1984), 12 C.C.C.(3d) 257 (B.C.C.A.), refd to. [para. 19].

R. v. Cormier (1974), 9 N.S.R.(2d) 687 (C.A.), refd to. [para. 21].

R. v. Young (L.A.) (1993), 117 N.S.R.(2d) 166; 324 A.P.R. 166 (C.A.), refd to. [para. 23].

R. v. Carrigan (1982), 53 N.S.R.(2d) 142; 109 A.P.R. 142 (C.A.), refd to. [para. 24].

R. v. Wenarchuk (1982), 15 Sask.R. 240; 67 C.C.C.(2d) 169 (C.A.), refd to. [para. 28].

R. v. MacNeil (F.D.) (1993), 130 N.S.R.(2d) 267; 367 A.P.R. 267 (S.C.), refd to. [para. 46].

R. v. E.A.F. (1994), 127 N.S.R.(2d) 239; 355 A.P.R. 239 (C.A.), refd to. [para. 57].

R. v. Picco (1987), 79 N.S.R.(2d) 139; 196 A.P.R. 139 (C.A.), refd to. [para. 60].

R. v. Martin (1982), 49 N.S.R.(2d) 361; 96 A.P.R. 361 (C.A.), refd to. [para. 60].

R. v. Leger (A.R.) (1993), 125 N.S.R.(2d) 154; 349 A.P.R. 154 (C.A.), refd to. [para. 79].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 676(4) [para. 14]; sect. 687 [para. 76]; sect. 742(6) [para. 5]; sect. 744 [para. 6]; sect. 745(1)(b) [para. 8].

Counsel:

Donald C. Murray, for the appellant;

Dana W. Giovannetti, for the respondent.

This cross-appeal was heard on September 27, 1994, before Hallett, Matthews and Roscoe, JJ.A., of the Nova Scotia Court of Appeal.

The judgment of the Court of Appeal was delivered on November 1, 1994, when the following opinions were delivered:

Matthews, J.A., dissenting - see para­graphs 1 to 72;

Hallett, J.A. (Roscoe, J.A., concurring) - see paragraphs 73 to 91.