R. v. Renouf (G.E.), (2001) 206 Nfld. & P.E.I.R. 67 (NFCA)

• Court: Court of Appeal (Newfoundland)
• Case Date: September 21, 2001
• Jurisdiction: Newfoundland and Labrador
• Citations: (2001), 206 Nfld. & P.E.I.R. 67 (NFCA)

R. v. Renouf (G.E.) (2001), 206 Nfld. & P.E.I.R. 67 (NFCA);

    618 A.P.R. 67

MLB headnote and full text

Temp. Cite: [2001] Nfld. & P.E.I.R. TBEd. OC.036

Her Majesty the Queen (appellant) v. Gary Eugene Renouf (respondent)

(01/32; 2001 NFCA 56)

Indexed As: R. v. Renouf (G.E.)

Newfoundland Supreme Court

Court of Appeal

Wells, C.J.N., Mahoney, Steele, Welsh, JJ.A. and Russell, J.(ex officio)

September 21, 2001.

Summary:

The accused was sentenced to seven years' imprisonment for various offences. Before the sentence expired, the accused pleaded guilty to four charges of break and entry and was sentenced to four months' imprisonment on each count to be served consecutively. The sentencing judge also imposed a three year period of probation. The Crown appealed.

The Newfoundland Court of Appeal allowed the appeal, holding that the proba­tion order was invalid pursuant to s. 139(1) of the Corrections and Conditional Release Act and s. 731 of the Criminal Code. The court increased the sentence to nine months' imprisonment on each count to be served consecutively and the whole to be served consecutively to the prior seven year sen­tence.

Criminal Law - Topic 5726

Punishments (sentence) - Probation or probation order - Circumstances when permissible - The accused was sentenced to seven years' imprisonment for various offences - The seven years was to expire on July 6, 2001 - In March 2001, the accused was convicted of additional offen­ces and sentenced to a total of 16 months' imprisonment - The sentencing judge imposed a probation order - The New­foundland Court of Appeal held that the probation order was invalid - Notwith­standing that the sentence of imprisonment, when added to the unserved portion of the respondent's unexpired sentence totalled less than two years, the probation order was invalid because the properly calculated total of the two sentences, constituted as a single sentence pursuant to s. 139(1) of the Corrections and Conditional Release Act, greatly exceeded two years - Section 731 of the Criminal Code permitted imposition of a probation order only where the sen­tence was constituted only of a fine or a term of imprisonment less than two years - See paragraphs 22 to 31.

Criminal Law - Topic 5851

Sentence - Break and enter - An accused, age 22, pleaded guilty to four charges of break and entry - The accused had an extensive youth court record - At age 16, he was tried as an adult because of the seriousness of the numerous offences he had been charged with - Those proceedings resulted in a seven year sentence - Received a statutory release in March of 1999 - Because of a theft conviction and breach of prohibitions relating to alcohol and drugs, the accused was returned to prison three times - He was on statutory release at time of committing the break and entries - The Newfoundland Court of Appeal sentenced the accused to nine months of consecutive imprisonment on each count with the total sentence to be served consecutively to the seven year sentence - See paragraphs 22 to 41.

Cases Noticed:

R. v. Hendrix (G.M.) (1999), 176 Nfld. & P.E.I.R. 293; 540 A.P.R. 293; 137 C.C.C.(3d) 445 (Nfld. C.A.), agreed with [para. 2].

R. v. Young (1980), 27 C.R.(3d) 85 (B.C.C.A.), refd to. [para. 11].

R. v. Amaralik (1984), 57 A.R. 59; 16 C.C.C.(3d) 22 (N.W.T.C.A.), refd to. [para. 11].

R. v. Currie (1982), 65 C.C.C.(2d) 415 (Ont. C.A.), refd to. [para. 11].

R. v. Sebelley (S.J.) (2000), 139 B.C.A.C. 29; 227 W.A.C. 29 (C.A.), refd to. [para. 11].

R. v. Stricker (W.) (1998), 216 A.R. 32; 175 W.A.C. 32 (C.A.), refd to. [para. 11].

R. v. Gill (B.S.) (1994), 162 A.R. 163; 83 W.A.C. 163 (C.A.), refd to. [para. 11].

R. v. McPhee (E.A.) (1993), 128 N.S.R.(2d) 79; 359 A.P.R. 79 (C.A.), refd to. [para. 11].

R. v. Wakeham (1984), 50 Nfld. & P.E.I.R. 348; 149 A.P.R. 348 (Nfld. C.A.), refd to. [para. 11].

R. v. H.J.P. (1995), 133 Nfld. & P.E.I.R. 20; 413 A.P.R. 20 (Nfld. C.A.), refd to. [para. 11].

R. v. Sutton, [1988] B.C.J. No. 103 (C.A.), refd to. [para. 12].

R. v. Miller (1987), 22 O.A.C. 103; 36 C.C.C.(3d) 100 (C.A.), refd to. [para. 12].

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. 19].

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; 105 C.C.C.(3d) 327, refd to. [para. 19].

R. v. L.F.W. (1997), 155 Nfld. & P.E.I.R. 115; 481 A.P.R. 115 (Nfld. C.A.), refd to. [para. 20].

R. v. J.M. (1998), 160 Nfld. & P.E.I.R. 38; 494 A.P.R. 38 (Nfld. C.A.), refd to. [para. 20].

R. v. O'Flaherty (A.E.) (1997), 155 Nfld. & P.E.I.R. 150; 481 A.P.R. 150 (Nfld. C.A.), refd to. [para. 20].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321; 114 C.C.C.(3d) 436, refd to. [para. 20].

Statutes Noticed:

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 139(1) [para. 11].

Criminal Code, R.S.C. 1985, c. C-46, sect. 731(1)(b) [para. 12].

Counsel:

Stephen Dawson, for the appellant;

Derek Hogan, for the respondent.

On September 21, 2001, Wells, C.J.N., Mahoney, Steele, Welsh, JJ.A. and Russell, J.(ex officio), of the Newfoundland Court of Appeal, heard this appeal and delivered judgment orally. Wells, C.J.N., delivered the following written reasons for the court on October 29, 2001.