R. v. Olson (M.B.), (2011) 300 B.C.A.C. 288 (CA)

• Judge: Newbury, Hall and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 06, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 300 B.C.A.C. 288 (CA);2011 BCCA 8

R. v. Olson (M.B.) (2011), 300 B.C.A.C. 288 (CA);

    509 W.A.C. 288

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. MR.046

Regina (respondent) v. Michael Bernhard Olson (appellant)

(CA038370; 2011 BCCA 8)

Indexed As: R. v. Olson (M.B.)

British Columbia Court of Appeal

Newbury, Hall and D. Smith, JJ.A.

January 6, 2011.

Summary:

The accused pled guilty to two counts of assault, two counts of uttering threats to cause death or bodily harm, one count of obstruction of justice, one count of breach of an undertaking and two counts of breach of a recognizance. The sentencing judge sentenced the accused to an eight-month conditional sentence. The sentence also included a three year prohibition order, a five year firearms prohibition, a DNA order and a restitution order. The accused sought leave to appeal the sentence, and if granted, appealed the sentence.

The British Columbia Court of Appeal granted leave to appeal and dismissed the appeal.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The 37 year old accused pled guilty to two counts of assault, two counts of uttering threats to cause death or bodily harm, one count of obstruction of justice, one count of breach of an undertaking and two counts of breach of a recognizance - The offences involved brutal attacks and threats of death and bodily injury on two successive and unrelated live-in girlfriends, two breaches of a no-contact court order made for the protection of the second victim, and an attack on the administration of criminal justice by the accused's intimidation of the second victim to drop her complaint to the police - The accused was unemployed and had a drinking problem but no criminal record - A joint submission by the Crown and defence suggested a three-month conditional sentence - The sentencing judge rejected the joint submission and sentenced the accused to an eight-month conditional sentence - The British Columbia Court of Appeal affirmed the sentence - A joint submission was not binding on a sentencing judge - The sentencing judge had the duty to impose what he believed to be a fit sentence after considering the circumstances of the offences, the circumstances of the offender, and the purpose and principles of sentence - The sentencing judge correctly followed the recommended procedure outlined in the case law on joint submissions before imposing a sentence that the accused failed to demonstrate was unfit - The global sentence imposed was well within the range of sentences "imposed on similar offenders for similar offences committed in similar circumstances".

Criminal Law - Topic 5830.6

Sentencing - Considerations on imposing sentence - Relationship of victim to accused - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5834

Sentencing - Considerations on imposing sentence - Circumstances tending to increase sentence - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5861

Sentence - Assault (incl. common assault) - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5895

Sentence - Threats - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5910

Sentence - Obstructing justice - [See Criminal Law - Topic 5813 ].

Cases Noticed:

R. v. Bezdan (J.G.) (2001), 154 B.C.A.C. 122; 252 W.A.C. 122; 2001 BCCA 215, refd to. [para. 10].

R. v. Nome (T.M.) (2002), 172 B.C.A.C. 183; 282 W.A.C. 183; 2002 BCCA 468, refd to. [para. 10].

R. v. Cooper (D.W.) (2009), 270 B.C.A.C. 247; 454 W.A.C. 247; 2009 BCCA 208, consd. [para. 11].

R. v. Maynard (2008), 79 W.C.B.(2d) 63; 2008 ONCJ 445, refd to. [para. 11].

R. v. Rollins, 2006 CarswellOnt 7998, refd to. [para. 11].

R. v. Fuentes (R.) (1994), 51 B.C.A.C. 164; 84 W.A.C. 164 (C.A.), refd to. [para. 11].

R. v. Hunter (R.C.) (2006), 231 B.C.A.C. 55; 381 W.A.C. 55; 2006 BCCA 433, refd to. [para. 17].

R. v. Hall (J.E.) (2001), 150 B.C.A.C. 313; 245 W.A.C. 313; 2001 BCCA 74, refd to. [para. 17].

R. v. Titchener (R.G.) (2009), 280 B.C.A.C. 23; 474 W.A.C. 23; 2009 BCCA 554, refd to. [para. 17].

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. 18].

R. v. Miner (Z.G.H.) (1997), 100 B.C.A.C. 249; 163 W.A.C. 249 (C.A.), refd to. [para. 19].

R. v. Pretty (J.A.) (2005), 208 B.C.A.C. 79; 344 W.A.C. 79; 2005 BCCA 52, refd to. [para. 19].

R. v. Fuller (G.T.) (2007), 244 B.C.A.C. 158; 403 W.A.C. 158; 2007 BCCA 353, refd to. [para. 19].

R. v. Furey (D.B.) (2007), 245 B.C.A.C. 67; 405 W.A.C. 67; 2007 BCCA 395, refd to. [para. 19].

R. v. Penney (M.E.) (2010), 288 B.C.A.C. 209; 488 W.A.C. 209; 2010 BCCA 307, refd to. [para. 19].

Counsel:

J.M. Duncan, for the appellant;

J.M.I. Duncan, for the (Crown) respondent.

This application for leave to appeal and appeal were heard on January 6, 2011, at Vancouver, British Columbia, by Newbury, Hall and D. Smith, JJ.A., of the British Columbia Court of Appeal. The following oral reasons for judgment of the Court of Appeal were delivered by D. Smith, J.A., on the same date.