R. v. Naugle (T.L.), 2010 NSPC 11

• Judge: Hoskins, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: February 12, 2010
• Jurisdiction: Nova Scotia
• Citations: 2010 NSPC 11;(2010), 288 N.S.R.(2d) 86 (PC)

R. v. Naugle (T.L.) (2010), 288 N.S.R.(2d) 86 (PC);

    914 A.P.R. 86

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. MR.004

Her Majesty The Queen v. Terrance Lee Naugle

(2024659; 2024660; 2024661; 2024662; 2010 NSPC 11)

Indexed As: R. v. Naugle (T.L.)

Nova Scotia Provincial Court

Hoskins, P.C.J.

February 12, 2010.

Summary:

The accused pleaded guilty to impaired driving, operating a motor vehicle while prohibited from doing so and leaving the scene of an accident with intent to escape criminal or civil liability. At issue was the appropriate sentences for a habitual offender like the accused, whose "atrocious" prior record of related offences showed a total disregard of the law, including court orders.

The Nova Scotia Provincial Court sentenced the accused to the maximum sentence of five years' imprisonment for impaired driving, 15 months' imprisonment for driving while prohibited (consecutive), after 21 months' credit for 10.5 months' pre-trial custody, and six months' imprisonment for leaving the scene of an accident (consecutive), for a total sentence of six years and nine months' imprisonment. The court also ordered forfeiture of the accused's vehicle as offence-related property (Criminal Code, s. 490.1(1)), restitution, a DNA order and a lifetime driving prohibition.

Criminal Law - Topic 3080

Special powers - Forensic DNA analysis - When DNA sample order available or appropriate - [See Criminal Law - Topic 5886 ].

Criminal Law - Topic 5622.2

Punishments (sentence) - Forfeiture orders - Offence-related property - [See Criminal Law - Topic 5886 ].

Criminal Law - Topic 5792

Punishments (sentence) - Restitution - When appropriate - [See Criminal Law - Topic 5886 ].

Criminal Law - Topic 5798

Punishments (sentence) - Prohibition orders - Respecting driving of motor vehicle - [See Criminal Law - Topic 5886 ].

Criminal Law - Topic 5830

Sentencing - Considerations on imposing sentence - General (incl. step or jump principle) - The Nova Scotia Provincial Court stated that "the jump principle embraces the notion that the imposition of successive sentences should be increased gradually rather than by 'jumps'" - However, the court also noted that appellate courts in Ontario and British Columbia had stated that "it has little application where the severity of the offender's crime shows a dramatic increase in violence and seriousness" and "the theory that sentences should go up only in moderate steps is a theory which rests on the sentencing principles of rehabilitation. It should be only in cases where rehabilitation is a significant sentencing factor." - See paragraphs 57 to 59.

Criminal Law - Topic 5831

Sentencing - Considerations on imposing sentence - Retribution or punishment - The Nova Scotia Provincial Court stated that the Supreme Court of Canada "expressly endorsed the concept of retribution as a legitimate and relevant consideration in the sentencing process" - The court noted that "its legitimacy as a principle of sentencing has often been questioned as a result of its unfortunate association with vengeance." - The court distinguished between retribution and vengeance - See paragraphs 39 to 40.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - [See Criminal Law - Topic 5886 ].

Criminal Law - Topic 5849.10

Sentencing - Considerations on imposing sentence - When maximum sentence available - [See Criminal Law - Topic 5886 ].

Criminal Law - Topic 5849.13

Sentencing - Considerations on imposing sentence - Drinking and driving offences - [See Criminal Law - Topic 5886 ].

Criminal Law - Topic 5866

Sentence - Leaving scene of an accident - [See Criminal Law - Topic 5886 ].

Criminal Law - Topic 5885

Sentence - Driving while disqualified or suspended - [See Criminal Law - Topic 5886 ].

Criminal Law - Topic 5886

Sentence - Impaired driving - The 53 year old intoxicated accused side-swiped an occupied, parked vehicle on the highway and failed to stop - He pleaded guilty (on the day of the trial) to impaired driving, leaving the scene of an accident, and driving while prohibited - The accused was a chronic alcoholic who was abused as a youth while in the Shelburne reformatory - He had a heart attack in February 2009 - The accused had an "atrocious" criminal record of 68 convictions over 32 years, including eight convictions for driving while having a blood-alcohol content over .08, 10 convictions for breathalyzer refusal and four convictions for impaired driving - He also had 14 convictions for driving while prohibited or disqualified and one count for dangerous driving - The accused had a history of being incarcerated for offending, then being released and reoffending - The present offences were committed 27 days after his latest release, while subject to a driving prohibition - The Nova Scotia Provincial Court held that the accused had an uncontrollable compulsion to drive a motor vehicle while intoxicated - He had no genuine interest in rehabilitation - The accused had repeatedly demonstrated a total disregard for the law, including court orders - He either did not recognize the extreme danger he posed to the public or did not care - Since rehabilitation was unlikely and specific deterrence had not been served by any previous sentence, the primary sentencing objective for such a habitual offender was protection of the public - The court sentenced the accused to the maximum sentence of five years' imprisonment for impaired driving, three years' imprisonment for driving while prohibited (consecutive) and six months' imprisonment for leaving the scene of an accident (consecutive), for a total sentence of 8.5 years' imprisonment - After 21 months' credit for 10.5 months' pre-trial custody, the net sentence to be served was six years and nine months' imprisonment - The court ordered forfeiture of the accused's vehicle as offence-related property (Criminal Code, s. 490.1(1)), restitution to the vehicle owner and insurer, a DNA order and a lifetime driving prohibition.

Cases Noticed:

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 4].

R. v. McVeigh (1985), 11 O.A.C. 345 (C.A.), refd to. [para. 10].

R. v. C.A.M. (1996), 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327 (S.C.C.), refd to. [para. 17].

R. v. Hamilton (M.A.) (2004), 189 O.A.C. 90 (C.A.), refd to. [para. 19].

R. v. Muller (J.) (1993), 22 B.C.A.C. 194; 38 W.A.C. 194 (C.A.), refd to. [para. 23].

R. v. Gladue (J.T.) (1999), 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161; 133 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 33].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.) (1985), 63 N.R. 266; 23 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 35].

R. v. Martineau (1990), 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 37].

R. v. Priest (J.) (1996), 93 O.A.C. 163; 110 C.C.C.(3d) 289 (C.A.), refd to. [para. 42].

R. v. Gummer (1983), 1 O.A.C. 141 (C.A.), refd to. [para. 51].

R. v. E.T.P. (2002), 163 Man.R.(2d) 113; 269 W.A.C. 113 (C.A.), refd to. [para. 53].

R. v. Borde (Q.) (2003), 168 O.A.C. 317 (C.A.), refd to. [para. 58].

R. v. Robitaille (A.) (1993), 31 B.C.A.C. 7; 50 W.A.C. 7 (C.A.), refd to. [para. 59].

R. v. Lockyer (D.L.) (2000), 195 Nfld. & P.E.I.R. 1; 586 A.P.R. 1 (Nfld. C.A.), refd to. [para. 61].

R. v. Solowan (K.S.T.), [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27, refd to. [para. 65].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351, refd to. [para. 66].

R. v. Newhouse (B.J.T.) (2004), 205 B.C.A.C. 32; 337 W.A.C. 32 (C.A.), refd to. [para. 83].

R. v. Duckworth (W.) (1993), 113 Sask.R. 178; 52 W.A.C. 178 (C.A.), refd to. [para. 92].

R. v. Bear (L.E.) (1994), 120 Sask.R. 294; 68 W.A.C. 294 (C.A.), refd to. [para. 92].

R. v. Archie (P.M.) (1997), 101 B.C.A.C. 249; 164 W.A.C. 249 (C.A.), refd to. [para. 92].

R. v. Howes (J.H.) (1998), 114 O.A.C. 196 (C.A.), refd to. [para. 92].

R. v. Hawkins (J.R.), [2000] B.C.A.C. Uned. 52 (C.A.), refd to. [para. 92].

R. v. Decorte (C.), [2001] O.T.C. 618; 15 M.V.R.(4th) 291 (Sup. Ct.), refd to. [para. 92].

R. v. Rania (2006), 37 M.V.R.(5th) 104 (Ont. C.J.), refd to. [para. 92].

R. v. Moreau (B.D.), [2007] B.C.W.L.D. 4520; 241 B.C.A.C. 231; 399 W.A.C. 231 (C.A.), refd to. [para. 92].

R. v. Tschritter (S.M.) (2006), 224 B.C.A.C. 302; 370 W.A.C. 302 (C.A.), refd to. [para. 92].

R. v. Malicia (A.) (2006), 216 O.A.C. 252; 211 C.C.C.(3d) 449 (C.A.), refd to. [para. 92].

R. v. Burke (1988), 5 M.V.R.(2d) 170 (Ont. C.A.), refd to. [para. 92].

R. v. Bill (H.) (1991), 3 B.C.A.C. 203; 7 W.A.C. 203; 31 M.V.R.(2d) 235 (C.A.), refd to. [para. 92].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236, refd to. [para. 106].

R. v. Fice (L.), [2005] 1 S.C.R. 742; 333 N.R. 243; 198 O.A.C. 146, refd to. [para. 108].

R. v. Roulette (P.) (2005), 201 Man.R.(2d) 148; 366 W.A.C. 148 (C.A.), refd to. [para. 110].

R. v. Bird (1990), 87 Sask.R. 19 (C.A.), refd to. [para. 119].

R. v. R.C., [2005] 3 S.C.R. 99; 340 N.R. 53; 237 N.S.R.(2d) 204; 754 A.P.R. 204, refd to. [para. 148].

R. v. Jordan (P.S.) (2002), 200 N.S.R.(2d) 371; 627 A.P.R. 371 (C.A.), refd to. [para. 158].

Authors and Works Noticed:

Manson, Allan, The Law of Sentencing (2001), p. 102 [para. 50].

Ruby, Clayton C., Sentencing (3rd Ed. 1987), pp. 27 [para. 49]; 115 [para. 60].

Counsel:

C. Byard, for the Crown;

P. Planetta, for the accused.

This matter was heard before Hoskins, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on February 12, 2010.