R. v. N.J.R.L., (2005) 201 Man.R.(2d) 153 (CA)

• Judge: Huband, Twaddle and Hamilton, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 03, 2005
• Jurisdiction: Manitoba
• Citations: (2005), 201 Man.R.(2d) 153 (CA);2005 MBCA 152

R. v. N.J.R.L. (2005), 201 Man.R.(2d) 153 (CA);

    366 W.A.C. 153

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. JA.001

Her Majesty The Queen (respondent) v. L. (N.J.R.) (young person/accused/appellant)

(AY 05-30-06177; 2005 MBCA 152)

Indexed As: R. v. N.J.R.L.

Manitoba Court of Appeal

Huband, Twaddle and Hamilton, JJ.A.

December 22, 2005.

Summary:

The accused committed an aggravated sexual assault when he was 16 years old. This was a presumptive offence under the Youth Criminal Justice Act (YCJA), requiring that an adult sentence be imposed unless the court ordered otherwise upon an application by the young person. When the accused pleaded guilty, the Crown consented to his application to be sentenced under the YCJA. The sentencing judge sentenced him to a three year custody and supervision order. The accused sought leave to appeal.

The Manitoba Court of Appeal granted leave and allowed the appeal to the extent of ordering that the two year custodial portion of the three year custody and supervision order would commence with six months' closed custody and the remainder would be open custody. The sentencing judge had not addressed the issue, having been under the mistaken belief that the accused would be serving his sentence in an adult provincial custodial facility.

Criminal Law - Topic 5933.1

Sentence - Aggravated sexual assault - The accused committed an aggravated sexual assault when he was 16 years old and intoxicated - The victim almost died - Under the Youth Criminal Justice Act (YCJA), the offence required an adult sentence unless the court ordered otherwise on an application by the accused - When the accused pleaded guilty, the Crown consented to his application for sentencing under the YCJA - The accused had no criminal record - History of alcohol abuse - The sentencing judge sentenced the accused to a three year custody and supervision order - The Manitoba Court of Appeal held that the sentence was fit - The court ordered that the two year custodial portion of the three year custody and supervision order would commence with six months' closed custody and the remainder would be open custody - The sentencing judge had not addressed the issue, having been under the mistaken belief that the accused would be serving his sentence in an adult provincial custodial facility - The six months' closed custody hopefully would enable the youth justice worker to assess, and begin addressing, the accused's needs - With open custody, the worker would have more available resources to assist with rehabilitation and reintegration.

Criminal Law - Topic 8817.4

Young offenders - Decisions (incl. punishments) - Custody - Violent offences - [See Criminal Law - Topic 5933.1 ].

Cases Noticed:

R. v. T.A.G. (1996), 110 Man.R.(2d) 17; 118 W.A.C. 17 (C.A.), refd to. [para. 24].

R. v. B.W.P. (2004), 187 Man.R.(2d) 80; 330 W.A.C. 80; 2004 MBCA 110, refd to. [para. 25].

R. v. M.D.C. (2004), 181 Man.R.(2d) 267; 2004 MBQB 47, refd to. [para. 25].

R. v. M.D.D. (2004), 253 Sask.R. 109; 2004 SKPC 106, refd to. [para. 27].

Counsel:

M. Wasyliw, for the appellant;

D.A. Tesarowski, for the respondent.

This appeal was heard on November 3, 2005, by Huband, Twaddle and Hamilton, JJ.A., of the Manitoba Court of Appeal. Hamilton, J.A., delivered the following decision for the court on December 22, 2005.