R. v. Newhook (A.C.), (2008) 276 Nfld. & P.E.I.R. 190 (NLCA)

• Judge: Rowe, Welsh and Barry, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: April 18, 2008
• Jurisdiction: Newfoundland and Labrador
• Citations: (2008), 276 Nfld. & P.E.I.R. 190 (NLCA);2008 NLCA 28

R. v. Newhook (A.C.) (2008), 276 Nfld. & P.E.I.R. 190 (NLCA);

    846 A.P.R. 190

MLB headnote and full text

Temp. Cite: [2008] Nfld. & P.E.I.R. TBEd. JN.018

Her Majesty the Queen (appellant) v. Alfred Clyde Newhook (respondent)

(07/73; 2008 NLCA 28)

Indexed As: R. v. Newhook (A.C.)

Newfoundland and Labrador Supreme Court

Court of Appeal

Rowe, Welsh and Barry, JJ.A.

June 16, 2008.

Summary:

The sentencing judge gave the accused a cumulative sentence of 23 months' imprisonment for a series of offences that he committed over several months against the same victim, with 16 months' credit for pre-sentence incarceration, and probation for two years. The Crown appealed the sentences, requesting that the one month sentence for the August 2006 offence be made consecutive to the ten month sentence for the three December 2006 offences. The Crown further requested that the total sentence for the six January 2007 offences be increased to five-and-a-half years, consecutive to the sentences from August and December, and that the probation order be set aside. The accused sought to have the Crown's appeal dismissed.

The Newfoundland and Labrador Court of Appeal granted leave to appeal the sentence, and allowed the appeal. The court varied the accused's sentences and applied the totality principle, such that his term of imprisonment was, from the date he was sentenced by the trial judge, five years less 16 months for pre-trial custody. His resulting term of imprisonment was 44 months. The court set aside the probation order. The issues that the court examined included single criminal adventure, consecutive versus concurrent sentences, "home invasion", the sentencing range for kidnapping and the principle of totality.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - The accused was sentenced to a cumulative sentence of 23 months' imprisonment for a series of offences that he committed over several months against the same victim - The Crown appealed the sentences - An issue that was examined was whether the December 2006 offences (assault, being unlawfully in her dwelling and mischief by damaging her dwelling when he broke in) were part of a single criminal adventure, such that the sentences for those offences should be concurrent - The assault occurred at a party, around 1:00 a.m., following which the victim later found the accused unlawfully in her house at 5:00 a.m., where he remained until 7:00 a.m. - The Newfoundland and Labrador Court of Appeal held that the trial judge erred in law by failing to apply the court's rule in R. v. Crocker (1991), reaffirmed in R. v. A.T.S. (2004) - The mischief offence and being unlawfully in the victim's dwelling were part of a single criminal adventure, and therefore the sentences for those two offences should be concurrent - On the other hand, the assault and unlawfully being in the dwelling were not part of a single criminal adventure, as those two offences were "separate in time, place and in their nature" - According, the sentences for those offences should be consecutive - See paragraphs 9 to 13.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - The accused was sentenced to a cumulative sentence of 23 months' imprisonment for a series of offences that he committed over several months against the same victim - The Crown appealed the sentences - At issue was whether the offences committed in January 2007 (break and entry, assault with a weapon, assault, kidnapping, breach of undertakings) were part of a single criminal adventure, such that the sentences for those offences should be concurrent - The Newfoundland and Labrador Court of Appeal held that the trial judge failed to apply the court's rule in R. v. Crocker (1991), and that "It was an error in law not to have done so" - The assault offences were part of a single criminal adventure, such that the sentences for these offences should be concurrent - However, the sentences for the offences of break and enter, assault, assault with a weapon, and kidnapping should be consecutive to one another - The offences were "... sufficiently distinct in their nature that they are not a single criminal adventure " - The court stated the same regarding the kidnapping offence - As for the breaches of undertaking, "the case law is clear" that these were consecutive - See paragraphs 14 to 20.

Criminal Law - Topic 5802.1

Sentencing - General - Concurrent sentences - Reduced term - [See Criminal Law - Topic 5804] .

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - [See both Criminal Law - Topic 5802 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - The accused was sentenced to a cumulative sentence of 23 months' imprisonment for a series of offences that he committed over several months against the same victim, including break and entry, assault with a weapon, assault, kidnapping, and breach of undertakings - The Crown appealed the sentences - The Newfoundland and Labrador Court of Appeal established a fit and either concurrent or consective sentence for each offence, totalling a sentence of nine years, two months - The court then applied the totality principle, and concluded that the sentence was too high - The total sentence was "substantially above" the three-to-five year range of sentence for the most serious of the individual offences; namely, kidnapping - Further, the total sentence would be a "crushing sentence", considering the accused's limited record, the "moderately hopeful" sentencing report, his guilty plea, and "what appears to be genuine remorse" - The court adjusted the sentences to achieve, in total, a term of imprisonment of five years - See paragraphs 49 to 58.

Criminal Law - Topic 5851

Sentence - Break and enter - The accused was sentenced to a cumulative sentence of 23 months' imprisonment for a series of offences that he committed against the same victim, including a four month sentence for break and enter - The Crown appealed the sentences - An issue was whether the sentence for breaking and entering into the victim's home, where he assaulted her, was "demonstrably unfit", requiring intervention on appeal - The Newfoundland and Labrador Court of Appeal imposed a sentence of three years for the break and enter - The court noted that the trial judge made no reference to s. 348.1 of the Criminal Code, requiring the sentencing judge to consider "home invasion" as an aggravating circumstance - The failure to apply that factor amounted to an error of law - Following a review of home invasion cases (no robbery), the court concluded that the offence warranted a sentence above the 18 months 'low end' of the range - It was the second time that the accused unlawfully entered the victim's house and assaulted her there - However, the offence did not involve as many serious aggravating factors as in another case where the sentence for break and enter was five years - See paragraphs 27 to 39.

Criminal Law - Topic 5861

Sentence - Assault (incl. common assault) - The accused was sentenced to a cumulative sentence of 23 months' imprisonment for a series of offences that he committed against the same victim, including a nine month sentence for assault with a weapon and four months for assault, to be served concurrently - The Crown appealed the sentences - An issue was whether the sentences for assault were "demonstrably unfit", requiring intervention on appeal - The Newfoundland and Labrador Court of Appeal stated that the sentences for the assaults "seem low", but could not say that the sentences were "demonstrably unfit" - See paragraph 40.

Criminal Law - Topic 5883

Sentence - Assault with a weapon or assault causing bodily harm - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - The accused was sentenced to a cumulative sentence of 23 months' imprisonment for a series of offences that he committed over several months against the same victim, including two breaches of undertaking - The Crown appealed the sentences - Issues that were examined included whether the offences were part of a single criminal adventure, such that the sentences should be concurrent, and whether the sentence of three months for each of the two breaches of undertaking was "demonstrably unfit" - The Newfoundland and Labrador Court of Appeal stated "As for the breaches of undertaking, one to stay away from Ms. White's residence and the other to avoid consumption of alcohol or drugs, the case law is clear, these should be consecutive" - While the sentences imposed seemed "low" to the court, it could not say that they were "demonstrably unfit" - See paragraphs 20 and 48.

Criminal Law - Topic 5904

Sentence - Kidnapping and abduction - The accused was sentenced to a cumulative sentence of 23 months' imprisonment for a series of offences that he committed against the same victim, including a one year sentence for kidnapping her - The Crown appealed the sentences - An issue was whether the sentence for kidnapping was "demonstrably unfit", requiring intervention on appeal - The Newfoundland and Labrador Court of Appeal imposed a sentence of four years for the kidnapping - The court agreed with the view of Clewley and McDermott in Sentencing: The Practitioner's Guide, that the planning involved in the execution of kidnapping was an aggravating factor that ought to increase the sentence, and that other aggravating factors included the use of a weapon and injuries to the victim - These elements were present in this case - The court looked to other "domestic" kidnapping cases for sentencing precedents, noting that the sentences ranged from 34 months to five years - See paragraphs 41 to 46.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - The accused was sentenced to a cumulative sentence of 23 months' imprisonment for a series of offences that he committed over several months against the same victim, including break and enter, assault, assault with a weapon, and kidnapping - The Crown appealed the sentences - In considering whether the sentences imposed by the trial judge were "demonstrably unfit", the Newfoundland and Labrador Court of Appeal stated that "It is proper for appellate courts to set an 'acceptable range' of sentences for various offences ... Where a sentence falls within the range, it will usually not be seen as "demonstrably unfit". Sentences above or below the range will attract appellate intervention, unless the Trial Judge has set out a reasoned basis for departing from the range" - See paragraph 42.

Cases Noticed:

R. v. Crocker (B.J.) (1991), 93 Nfld. & P.E.I.R. 222; 292 A.P.R. 222 (Nfld. C.A.), refd to. [para. 9].

R. v. A.T.S. (2004), 232 Nfld. & P.E.I.R. 283; 690 A.P.R. 283 (N.L.C.A.), refd to. [para. 9].

R. v. Walters (B.P.) (1994), 121 Nfld. & P.E.I.R. 257; 377 A.P.R. 257 (Nfld. C.A.), refd to. [para. 20].

R. v. Driscoll (R.E.) (2006), 262 Nfld. & P.E.I.R. 108; 794 A.P.R. 108 (N.L.T.D.), refd to. [para. 20].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193, refd to. [para. 21].

R. v. Pepin (1990), 98 N.S.R.(2d) 238; 263 A.P.R. 238 (C.A.), refd to. [para. 21].

R. v. Muise (D.R.) (1994), 135 N.S.R.(2d) 81; 386 A.P.R. 81; 94 C.C.C.(3d) 119 (C.A.), refd to. [para. 21].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 23].

R. v. A.J.C. (2004), 196 B.C.A.C. 257; 322 W.A.C. 257; 186 C.C.C.(3d) 227; 2004 BCCA 268, refd to. [para. 30].

R. v. J.S. (2006), 213 O.A.C. 274; 210 C.C.C.(3d) 296 (C.A.), refd to. [para. 30].

R. v. Harris (P.J.) (2000), 181 N.S.R.(2d) 211; 560 A.P.R. 211; 142 C.C.C.(3d) 252 (C.A.), refd to. [para. 31].

R. v. Brewer (P.J.) (1999), 182 Nfld. & P.E.I.R. 14; 554 A.P.R. 14; 141 C.C.C.(3d) 290 (Nfld. C.A.), refd to. [para. 32].

R. v. Andersen (D.R.) (1998), 168 N.S.R.(2d) 393; 505 A.P.R. 393 (S.C.), affd. (1999), 175 N.S.R.(2d) 362; 534 A.P.R. 362 (C.A.), refd to. [para. 36].

R. v. Johnson (E.S.) (2004), 357 A.R. 242; 334 W.A.C. 242 (C.A.), refd to. [para. 37].

R. v. Strickland, [2006] N.J. No. 252 (Prov. Ct.), refd to. [para. 38].

R. v. Deo (H.S.) et al. (2007), 249 B.C.A.C. 167; 414 W.A.C. 167 (C.A.), refd to. [para. 41].

R. v. Robbie (1989), 96 A.R. 302; 68 Alta. L.R.(2d) 386 (C.A.), refd to. [para. 45].

R. v. Senior (L.W.A.) (1996), 181 A.R. 1; 116 W.A.C. 1 (C.A.), affd. [1997] 2 S.C.R. 288; 212 N.R. 235; 200 A.R. 222; 146 W.A.C. 222, refd to. [para. 45].

R. v. R.F., [2000] Y.J. No. 54 (Terr. Ct.), refd to. [para. 45].

R. v. P.S. (2007), 223 O.A.C. 293; 221 C.C.C.(3d) 45 (C.A.), refd to. [para. 45].

R. v. E.W. (2002), 216 Nfld. & P.E.I.R. 89; 647 A.P.R. 89; 2002 NFCA 49, refd to. [para. 50].

R. v. A.T.S. (2004), 232 Nfld. & P.E.I.R. 283; 690 A.P.R. 283; 2004 NLCA 1, refd to. [para. 50].

R. v. Rowe (D.) (2008), 273 Nfld. & P.E.I.R. 38; 833 A.P.R. 38; 2008 NLCA 3, refd to. [para. 50].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 348.1 [para. 26].

Authors and Works Noticed:

Clewley, Gary R., and McDermott, Paul G., Sentencing: The Practitioner's Guide (2008 Looseleaf), pp. 8-185, 8-187 [para. 43].

Ruby, Clayton C., Sentencing (4th Ed. 1994), pp. 44, 45 [para. 60].

Counsel:

Frances Knickle, for the appellant;

Michael Ralph, for the respondent.

This appeal was heard on April 18, 2008, at St. John's, Newfoundland, by Rowe, Welsh and Barry, JJ.A., of the Newfoundland and Labrador Court of Appeal. The court released the following judgment on June 16, 2008, which included the following reasons:

Rowe, J.A. - see paragraphs 1 to 58;

Welsh, J.A. (Barry, J.A., concurring) - see paragraphs 59 to 66.