R. v. Stacey (B.J.), (2015) 368 Nfld. & P.E.I.R. 346 (NLPC)

• Judge: Porter, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: June 30, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 368 Nfld. & P.E.I.R. 346 (NLPC)

R. v. Stacey (B.J.) (2015), 368 Nfld. & P.E.I.R. 346 (NLPC);

    1149 A.P.R. 346

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. JL.003

Her Majesty the Queen v. Brent Joseph Stacey

(Docket: 0815A00039, 0815A00132)

Indexed As: R. v. Stacey (B.J.)

Newfoundland and Labrador Provincial Court

Porter, P.C.J.

July 8, 2015.

Summary:

The accused assaulted his conjoint and damaged her apartment. After being released on bail, he assaulted her again and damaged her property. The accused pleaded guilty to assault, mischief by damaging property and breaches of his bail conditions.

The Newfoundland and Labrador Provincial Court sentenced the accused to a total of 150 days, before crediting him with 10 days' pretrial custody at a rate of 1.5:1, for a net sentence of 135 days.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused assaulted his conjoint and damaged her apartment - After being released on bail, he assaulted her again and damaged her property - The accused pled guilty to assault, mischief by damaging property and breaches of his bail conditions - The Newfoundland and Labrador Provincial Court held that a conditional sentence was not available - The accused had four prior convictions for driving while disqualified - He was now being sentenced for a number of offences, including two breaches of undertaking - This amounted to six breaches of court orders - It was illogical to expect him to comply with the conditions of a conditional sentence order - Even if one could discount the apparent inability of the accused to comply with bail conditions and court ordered driving prohibitions, he had twice assaulted the same complainant - Thus, the court was not satisfied that serving the sentence in the community would not endanger safety of the community, including the complainant (Criminal Code, s. 742.1(a)) - See paragraphs 16 to 19.

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - [See third Criminal Law - Topic 5898.1 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term - Totality principle - The accused assaulted his conjoint and damaged her apartment on March 12, 2015 - After being released on bail, he assaulted her again and damaged her property on June 28, 2015 - The accused pled guilty to assault, mischief by damaging property and breaches of his bail conditions - The Newfoundland and Labrador Provincial Court stated that the assaults were "domestic" in nature, an aggravating fact under s. 718.2(a)(ii) of the Criminal Code - Further, the accused was on judicial interim release when he committed the June 28 offences - The court stated that, before applying the totality principle, the following would have been reasonable sentences: March 12 offences - assault, 30 days, mischief, 10 days; June 28 offences - assault, 90 days, breach bail (alcohol consumption), 60 days, breach bail (contact with victim), 90 days, and mischief, 20 days (300 days' total, before credit for pretrial custody) - This exceeded the sentence range recommended by the Crown - It was reasonable to reduce the overall sentence, in two steps - First, the mischief sentences were made concurrent to the assault offences - Second, the sentences for the breaches of bail condition were reduced to 30 days each, and made concurrent to one another, but consecutive to the assault sentence as follows: March 12 offences - assault, 30 days, mischief, 10 days, concurrent; June 28 offences - assault, 90 days, consecutive, breach bail (alcohol consumption), 30 days, concurrent, breach bail (contact with victim), 30 days, consecutive, and mischief, 20 days, concurrent (150 days) - The court then credited the accused with 10 days' pretrial custody at a rate of 1.5:1, for a net sentence of 135 days.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5846.7

Sentencing - Considerations on imposing sentence - Offence committed while accused on recognizance or bail - [See Criminal Law - Topic 5804 ].

Criminal Law -Topic 5861

Sentence - Assault - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5890

Sentence - Mischief (includes vandalism) - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5898.1

Sentence - Breach of bail conditions - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 5898.1

Sentence - Breach of bail conditions - The Newfoundland and Labrador Provincial Court stated that "[w]hile the statutory range is significantly lower, practically speaking, the sentences for breach of bail conditions generally parallel the sentences for breach of probation." - See paragraph 32.

Criminal Law - Topic 5898.1

Sentence - Breach of bail conditions - The accused assaulted his conjoint and damaged her apartment on March 12, 2015 - After being released on bail, he assaulted her again and damaged her property on June 28, 2015 - The accused pled guilty to assault, mischief by damaging property and breaches of his bail conditions, which were in the form of an undertaking given to the police - The Newfoundland and Labrador Provincial Court stated that "[t]he accused committed two offences on March 12, 2015, and four offences on June 28, 2015. It is reasonable to consider that these amount to two separate criminal adventures, subject to the caveat that sentences for breach of court order (and, by inference, police issued undertakings as well) are generally ordered to be served on a consecutive basis" - See paragraph 40.

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See third Criminal Law - Topic 5898.1 ].

Cases Noticed:

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. 20].

R. v. Batt, [2010] N.J. No. 137 (Prov. Ct.), refd to. [para. 23].

R. v. Hillier (M.C.), [2010] Nfld. & P.E.I.R. Uned. 52 (N.L. Prov. Ct.), refd to. [para. 23].

R. v. Fong (P.C.) (2011), 312 Nfld. & P.E.I.R. 63; 971 A.P.R. 63 (N.L. Prov. Ct.), refd to. [para. 23].

R. v. Pumphrey (J.) (2011), 317 Nfld. & P.E.I.R. 21; 986 A.P.R. 21 (N.L. Prov. Ct.), refd to. [para. 23].

R. v. Leggo (R.) (2011), 317 Nfld. & P.E.I.R. 252; 986 A.P.R. 252 (N.L. Prov. Ct.), refd to. [para. 23].

R. v. Best (C.A.T.) (2014), 355 Nfld. & P.E.I.R. 82; 1106 A.P.R. 82; 2014 NLTD(G) 108, refd to. [para. 23].

R. v. S.E.Y. (2014), 356 Nfld. & P.E.I.R. 15; 1108 A.P.R. 15; 2014 CanLII 74481 (Prov. Ct.), refd to. [para. 23].

R. v. Brown (C.R.) et al. (1992), 125 A.R. 150; 14 W.A.C. 150; 1992 ABCA 132, refd to. [para. 24].

R. v. O'Donnell, [2005] N.J. No. 333 (Prov. Ct.), refd to. [para. 25].

R. v. Crocker, [1991] CarswellNfld 109; 93 Nfld. & P.E.I.R. 222; 292 A.P.R. 222; 14 W.C.B.(2d) 502; 1991 CanLII 2737 (Nfld. C.A.), refd to. [para. 28].

R. v. Hennebury (P.) (1996), 138 Nfld. & P.E.I.R. 56; 431 A.P.R. 56 (Nfld. C.A.), refd to. [para. 30].

R. v. Murphy (D.) (2011), 304 Nfld. & P.E.I.R. 266; 944 A.P.R. 266; 2011 NLCA 16, refd to. [para. 31].

R. v. Lewis (D.E.) (2012), 318 Nfld. & P.E.I.R. 64; 989 A.P.R. 64; 2012 NLCA 11, refd to. [para. 34].

R. v. Lavers (S.J.) (2010), 303 Nfld. & P.E.I.R. 153; 941 A.P.R. 153 (N.L.C.A.), refd to. [para. 35].

R. v. Lewis (B.F.) (2011), 313 Nfld. & P.E.I.R. 231; 974 A.P.R. 231 (N.L. Prov. Ct.), refd to. [para. 36].

R. v. Simmonds (R.M.) (2011), 313 Nfld. & P.E.I.R. 271; 974 A.P.R. 271 (N.L. Prov. Ct.), refd to. [para. 36].

R. v. Rowe (D.) (2008), 273 Nfld. & P.E.I.R. 38; 833 A.P.R. 38; 2008 NLCA 3, refd to. [para. 38].

R. v. Hutchings (R.) (2012), 316 Nfld. & P.E.I.R. 211; 982 A.P.R. 211; 2012 NLCA 2, refd to. [para. 39].

R. v. Summers (S.) (2014), 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 43].

Counsel:

A. Manning, for the Crown;

J. Slade, for the accused.

This case was heard on June 30, 2015, by Porter, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision on July 8, 2015.