R. v. Pudwell (M.J.D.), 2013 ABCA 88

• Judge: Côté, Picard and Martin, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 20, 2013
• Citations: 2013 ABCA 88;(2013), 544 A.R. 175

R. v. Pudwell (M.J.D.) (2013), 544 A.R. 175; 567 W.A.C. 175 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.001

Her Majesty the Queen (appellant) v. Michael James Pudwell (respondent)

(1201-0264-A; 2013 ABCA 88)

Indexed As: R. v. Pudwell (M.J.D.)

Alberta Court of Appeal

Côté, Picard and Martin, JJ.A.

March 26, 2013.

Summary:

The accused pleaded guilty to sexual interference (unlawful touching).

The Alberta Provincial Court, in a decision reported at [2012] A.R. Uned. 751, sentenced the accused to time served (five months), which after giving 1.5:1 credit for pretrial custody, resulted in a notional sentence of 7.5 months. The Crown appealed.

The Alberta Court of Appeal denied leave to appeal.

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - The accused pleaded guilty to sexual interference (unlawful touching) - The 20 year old accused and his 15 year old friend were in the complainant's bedroom - The complainant proposed that they engage in a "threesome" - The accused initially declined, but his friend pointed out that the complainant had condoms that they could use - They engaged in a game of striptease - When all were naked, the friend had sexual intercourse with the complainant, followed by the accused - Both used condoms - The complainant's father discovered what happened and took the complainant to the police station - She was reluctant to cooperate and asked that no charges be laid - The accused was unusually immature, unsure of himself and easily overborne or led - He had a significant depressive mental illness that had been almost fatal a number of times, including during the month of the offence - The trial judge sentenced him to time served (five months), which after 1.5:1 credit for pretrial custody, resulted in a notional sentence of 7.5 months - The Crown appealed - The Alberta Court of Appeal stated that it was not prepared to endorse the sentence and therefore could not dismiss the appeal - The nature of the accused's illness made the delay in the appeal process dangerous - The shock of recommittal to prison might have the gravest consequences on him - He was not the author of the need for recommittal - While the sentence that he sought at trial (one year's imprisonment) was arguably low, it was not seriously so - The Crown's submissions at trial were proper, but it had been party to some delay in sentencing - An appeal was conditional upon leave being granted - Given the unusual circumstances, the court denied leave.

Criminal Law - Topic 6208.1

Sentencing - Appeals - Variation of sentence - Application for leave to appeal - General principles - [See Criminal Law - Topic 5950 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served (incl. appeal delay) - [See Criminal Law - Topic 5950 ].

Cases Noticed:

R. v. Brady (J.R.) (1998), 209 A.R. 321; 160 W.A.C. 321; 1998 ABCA 7, refd to. [para. 35].

R. v. Howe (D.) (2002), 317 A.R. 225; 284 W.A.C. 225; 2002 ABCA 277, refd to. [para. 35].

R. v. Bergen (D.D.) (2009), 448 A.R. 22; 447 W.A.C. 22; 3009 ABCA 69, refd to. [para. 35].

Counsel:

B.R. Graff, for the appellant;

R. Onoferychuk, for the respondent.

This appeal was heard on February 20, 2013, by Côté, Picard and Martin, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the court was filed at Calgary, Alberta on March 26, 2013.