R. v. Sheppard (S.M.), (2014) 346 Nfld. & P.E.I.R. 134 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: January 10, 2014
• Jurisdiction: Newfoundland and Labrador
• Citations: (2014), 346 Nfld. & P.E.I.R. 134 (NLPC)

R. v. Sheppard (S.M.) (2014), 346 Nfld. & P.E.I.R. 134 (NLPC);

    1078 A.P.R. 134

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. JA.005

Her Majesty the Queen v. Steven Michael Sheppard

(2013 PCNL 1313A00173)

Indexed As: R. v. Sheppard (S.M.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

January 14, 2014.

Summary:

The accused was unwilling to accept that his 10 year relationship with Griffin had ended. He began to "bother" her. Griffin requested a no contact order under s. 810 of the Criminal Code. A Provincial Court judge granted her request and required the accused to enter into a s. 810 recognizance for six months. One of the conditions of the recognizance required the accused to "remain away" from Griffin and her residence. The accused ignored the order, in part, because it was issued by a "female judge." He contacted Griffin and went to her residence. He was arrested by the police and charged with breaching s. 811 of the Code. He was released on an undertaking by a police officer. The undertaking required that he "abstain from communicating" with Griffin. The accused refused to comply with this condition and contacted Griffin. He was charged with a breach of s. 145(5.1) of the Code. The accused pleaded guilty to five breaches of s. 811 and one breach of s. 145(5.1). The Crown proceeded summarily.

The Newfoundland and Labrador Provincial Court sentenced the accused to 60 days' incarceration, to be followed by two years' probation and imposed a $50 victim surcharge.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See Criminal Law - Topic 5807 ].

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - The accused pleaded guilty to five breaches of recognizances contrary to s. 811 of the Criminal Code and one breach of an undertaking contrary to s. 145(5.1) - The Crown proceeded summarily - The offences related to the accused's inability to accept that his 10 year relationship had ended - The Newfoundland and Labrador Provincial Court stated that "When an offender has committed multiple offences, the Court must determine an appropriate sentence for each offence and then consider the totality principle of sentencing ... " - The court concluded that the following sentences for the individual offences were appropriate: (1) breach of recognizance on January 1, 2013, seven days' imprisonment; (2) breach of recognizance on January 2, 2013, seven days' imprisonment; (3) breach of recognizance on January 6, 2013, 30 days' imprisonment; (4) breach of recognizance committed on January 7, 2013, 60 days' imprisonment; (5) breach of undertaking on March 15, 2013, 90 days' imprisonment; and (6) breach of recognizance on March 15, 2013, 90 days' imprisonment - The court concluded that the periods of imprisonment for each of the offences committed by the accused should be served consecutively, including the two which occurred on March 15, 2013 - Although they arose out of the same contact, they involved separate court orders and the accused should not be granted a free ride in relation to the breach of a court order - The court then applied the principles of totality and proportionality and held that the 9.5 month sentence would be unduly harsh - The court reduced it to 60 days - This sentence was achieved by imposing a period of 60 days' imprisonment on each count to be served on a concurrent basis - See paragraphs 51 to 61.

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - The Newfoundland and Labrador Provincial Court stated that, for breaches of court orders, there were a multitude of sentencing precedents to which reference could be made for guidance in imposing sentence, though a prescriptive range had not been set - The court set out general principles regarding sentencing for breaches of court orders, and reviewed sentence precedents for breaches of undertakings and s. 810 Criminal Code recognizances - See paragraphs 32 to 45.

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - The accused was unwilling to accept that his 10 year relationship with Griffin had ended - He began to "bother" her - Griffin requested a no contact order under s. 810 of the Criminal Code - A Provincial Court judge granted her request and required the accused to enter into a s. 810 recognizance for six months - One of the conditions of the recognizance required the accused to "remain away" from Griffin and her residence - The accused ignored the order, in part, because it was issued by a "female judge" - He contacted Griffin and went to her residence - He was arrested by the police and charged with breaching s. 811 of the Code - He was released on an undertaking by a police officer - The undertaking required that he "abstain from communicating" with Griffin - The accused refused to comply with this condition and contacted Griffin - He was charged with a breach of s. 145(5.1) of the Code - The accused pleaded guilty to five breaches of s. 811 and one breach of s. 145(5.1) - The Crown proceeded summarily - The accused had a dated and unrelated record - For the past nine months, he had complied with both orders - The Newfoundland and Labrador Provincial Court held that the fact that the undertaking was issued by a police office rather than a judge did not lessen the seriousness of the offence - The court considered the number of breaches of court orders and the need to stress the principles of general deterrence and denunciation, and concluded that a non-custodial sentence was not a reasonable alternative - The court sentenced the accused to a total of 60 days' incarceration, followed by two years' probation, and imposed a $50 victim surcharge.

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See Criminal Law - Topic 5807 ].

Criminal Law - Topic 5936

Sentence - Particular offences - Multiple offences - [See second Criminal Law - Topic 5892 ].

Cases Noticed:

R. v. Lundrigan (D.A.) (2012), 324 Nfld. & P.E.I.R. 270; 1007 A.P.R. 270; 2012 NLCA 43, refd to. [para. 15].

R. v. Webber (C.G.), [2013] A.R. Uned. 125; 2013 ABCA 189, refd to. [para. 21].

R. v. Knott (D.W.) (2012), 433 N.R. 38; 324 B.C.A.C. 1; 551 W.A.C. 1; 2012 SCC 42, refd to. [para. 21].

Western Australia v. Doualeh, [2014] WASCA 3, refd to. [para. 21].

R. v. Berner (C.-A.) (2013), 337 B.C.A.C. 146; 576 W.A.C. 146; 2013 BCCA 188, refd to. [para. 22].

R. v. Cluney (N.) (2013), 338 Nfld. & P.E.I.R. 57; 1049 A.P.R. 57; 2013 NLCA 46, refd to. [para. 25].

R. v. Briand (R.) et al. (2010), 302 Nfld. & P.E.I.R. 67; 938 A.P.R. 67 (N.L.C.A.), refd to. [para. 26].

R. v. Day (S.B.) (2013), 336 B.C.A.C. 224; 574 W.A.C. 224; 2013 BCCA 172, refd to. [para. 29].

R. v. Oake (B.) (2010), 296 Nfld. & P.E.I.R. 79; 915 A.P.R. 79 (N.L.C.A.), refd to. [para. 29].

R. v. Johnston (H.E.) (2011), 311 Nfld. & P.E.I.R. 129; 967 A.P.R. 129 (N.L.C.A.), refd to. [para. 31].

R. v. Murphy (D.) (2011), 304 Nfld. & P.E.I.R. 266; 944 A.P.R. 266 (N.L.C.A.), refd to. [para. 33].

R. v. Power (A.M.) (2010), 301 Nfld. & P.E.I.R. 352; 932 A.P.R. 352 (N.L. Prov. Ct.), refd to. [para. 34].

R. v. Hutchings (R.) (2012), 316 Nfld. & P.E.I.R. 211; 982 A.P.R. 211 (N.L.C.A.), refd to. [para. 35].

R. v. King (D.) (2013), 336 Nfld. & P.E.I.R. 255; 1043 A.P.R. 255 (N.L. Prov. Ct.), refd to. [para. 36].

R. v. Farrell (A.C.) (2013), 341 Nfld. & P.E.I.R. 244; 1061 A.P.R. 244 (N.L. Prov. Ct.), refd to. [para. 37].

R. v. Stacey (J.) (2013), 341 Nfld. & P.E.I.R. 236; 1061 A.P.R. 236 (N.L. Prov. Ct.), refd to. [para. 38].

R. v. Saunders (J.A.) (2013), 343 Nfld. & P.E.I.R. 271; 1066 A.P.R. 271 (N.L. Prov. Ct.), refd to. [para. 39].

R. v. Skinner (G.A.), 2002 NFCA 44, refd to. [para. 40].

R. v. Kelly (D.) (2004), 233 Nfld. & P.E.I.R. 108; 693 A.P.R. 108 (N.L. Prov. Ct.), refd to. [para. 41].

R. v. Loder, [2005] N.J. No. 105 (Prov. Ct.), refd to. [para. 42].

R. v. Suarak (W.C.) (2006), 262 Nfld. & P.E.I.R. 230; 794 A.P.R. 230 (N.L.T.D.), refd to. [para. 43].

R. v. Gould (R.) (2013), 332 Nfld. & P.E.I.R. 204; 1030 A.P.R. 204 (N.L. Prov. Ct.), refd to. [para. 44].

R. v. C.M. (2013), 339 Nfld. & P.E.I.R. 14; 1054 A.P.R. 14 (N.L.T.D. (Gen.)), refd to. [para. 45].

R. v. Rowe (D.) (2008), 273 Nfld. & P.E.I.R. 38; 833 A.P.R. 38 (N.L.C.A.), refd to. [para. 51].

R. v. E.W. (2002), 216 Nfld. & P.E.I.R. 89; 647 A.P.R. 89 (N.L.C.A.), refd to. [para. 51].

R. v. Crocker (B.J.) (1991), 93 Nfld. & P.E.I.R. 222; 292 A.P.R. 222 (Nfld. C.A.), refd to. [para. 54].

R. v. Lewis (D.E.) (2012), 318 Nfld. & P.E.I.R. 64; 989 A.P.R. 64; 2012 NLCA 11, refd to. [para. 55].

R. v. K.V.E. (2013), 347 B.C.A.C. 253; 593 W.A.C. 253 ; 2013 BCCA 521, refd to. [para. 56].

R. v. Khawaja (M.M.) (2012), 437 N.R. 42; 301 O.A.C. 200; 2012 SCC 69, refd to. [para. 57].

R. v. Berry (C.D.) (2014), 349 B.C.A.C. 76; 596 W.A.C. 76; 2014 BCCA 7, refd to. [para. 59].

R. v. Oxford (M.) (2010), 299 Nfld. & P.E.I.R. 327; 926 A.P.R. 327 (N.L.C.A.), refd to. [para. 59].

Authors and Works Noticed:

United Kingdom, England and Wales Sentencing Council, Overarching Guidelines Consultation: Allocation, Offences Taken Into Consideration and Totality, Consultation Paper (2011), p. 16 [para. 59].

Counsel:

A. Dwyer, for Her Majesty the Queen;

S. Burden, for Mr. Sheppard.

This sentencing matter was heard on January 10, 2014, at Corner Brook, N.L., by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision on January 14, 2014.