R. v. Scott (C.D.), 2015 ABCA 99

• Judge: Paperny, Slatter and McDonald, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 24, 2015
• Citations: 2015 ABCA 99;(2015), 599 A.R. 182

R. v. Scott (C.D.) (2015), 599 A.R. 182; 643 W.A.C. 182 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.062

Her Majesty the Queen (appellant) v. Cody Dean Scott (respondent)

(1401-0199-A; 2015 ABCA 99)

Indexed As: R. v. Scott (C.D.)

Alberta Court of Appeal

Paperny, Slatter and McDonald, JJ.A.

March 9, 2015.

Summary:

The 19 year old accused pled guilty to breaking and entering a dwelling house. He had 28 prior convictions. The trial judge imposed an 18 month suspended sentence with probation and community service. The Crown appealed.

The Alberta Court of Appeal allowed the appeal, sentencing the accused to nine months' imprisonment, less 44 days of credit for presentencing custody.

Criminal Law - Topic 5704

Punishments (sentence) - Suspended sentence - Circumstances when appropriate - The 19 year old accused pled guilty to breaking and entering a dwelling house - In sentencing the accused, the trial judge noted that "this would have been ... an ideal case for a conditional sentence order" - However, as a conditional sentence was not available for this offence, the trial judge imposed an 18 month suspended sentence with probation and community service - The Alberta Court of Appeal allowed the Crown's appeal - The sentence was unfit - It was an error in principle to treat a conditional sentence and probation as equivalent sentencing options - By observing that a conditional sentence was suitable, if it was available, the judge implicitly acknowledged that a custodial sentence of less than two years was called for - The fact that Parliament had not made that option available did not enable the court to impose an unfit sentence that attempted to replicate the unavailable option - Where a custodial sentence was called for, it was an error in principle to impose a non-custodial sentence - See paragraphs 1 to 9.

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5849.23

Sentencing - Considerations on imposing sentence - Home invasion - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5851

Sentence - Break and enter - The 19 year old accused pled guilty to breaking and entering a dwelling house - He had 28 prior convictions - The trial judge imposed an 18 month suspended sentence with probation and community service - The Alberta Court of Appeal allowed the Crown's appeal, sentencing the accused to nine months' imprisonment, less 44 days of credit for presentencing custody - The sentence failed to give appropriate weight to denunciation and deterrence - The sentence had to be set aside as unfit and a new sentence imposed - Aggravating factors included the accused's prior convictions and that the offence occurred in the middle of the night while the house was occupied - The gap in the accused's record was a mitigating factor - While "youthfulness" was often seen as mitigating, that factor became less important when a young adult already had a considerable amount of experience in the criminal justice system - The accused's youth was not significantly mitigating here - Even the gap did not merit great weight because much of it represented time that the accused spent in custody or under court supervision - See paragraphs 10 to 14.

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5704 and Criminal Law - Topic 5851 ].

Cases Noticed:

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. 6].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 6].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 8].

R. v. Martyn (S.K.) (2014), 572 A.R. 102; 609 W.A.C. 102; 2014 ABCA 151, refd to. [para. 10].

R. v. Merenick (1992), 117 A.R. 368; 2 W.A.C. 368 (C.A.), refd to. [para. 10].

R. v. Matwiy (S.B.) and Langston (J.D.) (1996), 178 A.R. 356; 110 W.A.C. 356; 105 C.C.C.(3d) 251; 1996 ABCA 63, refd to. [para. 10].

R. v. Demeter and Whitmore (1976), 32 C.C.C.(2d) 379 (Ont. C.A.), refd to. [para. 13].

R. v. Jackson (J.) (2002), 158 O.A.C. 289; 163 C.C.C.(3d) 451 (C.A.), refd to. [para. 13].

R. v. Ijam (G.) (2007), 228 O.A.C. 296; 2007 ONCA 597, refd to. [para. 13].

R. v. Hussey (1990), 83 Nfld. & P.E.I.R. 161; 260 A.P.R. 161 (Nfld. C.A.), refd to. [para. 13].

R. v. Quesnel and Smith (1984), 4 O.A.C. 393; 14 C.C.C.(3d) 254 (C.A.), refd to. [para. 13].

Counsel:

M.D. Dalidowicz, for the appellant;

A.L. Serink, for the respondent.

This appeal was heard on February 24, 2015, by Paperny, Slatter and McDonald, JJ.A., of the Alberta Court of Appeal. On March 9, 2015, the court delivered the following memorandum of judgment.