R. v. Veysey, 2006 NBCA 55

• Jurisdiction: New Brunswick
• Judge: Larlee, Robertson and Richard, JJ.A.
• Neutral Citation: 2006 NBCA 55
• Date: 18 May 2006
• Court: Court of Appeal (New Brunswick)

R. v. Veysey (J.M.) (2006), 303 N.B.R.(2d) 290 (CA);

    303 R.N.-B.(2e) 290; 787 A.P.R. 290

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] N.B.R.(2d) TBEd. SE.029

Her Majesty The Queen (appellant) v. Jason Michael Veysey (respondent)

(153/05/CA; 2006 NBCA 55)

Indexed As: R. v. Veysey (J.M.)

New Brunswick Court of Appeal

Larlee, Robertson and Richard, JJ.A.

May 18, 2006.

Summary:

The 26 year old accused, a petty thief addicted to dilaudid, pled guilty to: three counts of uttering a forged document; seven counts of theft under $5,000 (indictable); two counts of theft under $5,000 (summary conviction); one count of theft by false pretences and three counts of breach of probation (indictable). The offences were committed over a one year period. The judge imposed a cumulative sentence of seven months' imprisonment plus two years' pro­bation. The Crown appealed, submitting that the total sentence was demonstrably unfit. The accused had already served the custodial portion of his sentence when the appeal was heard. The issue was whether to stay execu­tion of any increased sentence by reason of the original sentence already being served.

The New Brunswick Court of Appeal allowed the appeal and substituted a sentence of 18 months' imprisonment. The court ordered the accused reincarcerated to serve a further 11 months.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sen­tences - The 26 year old accused, a petty thief addicted to dilaudid, pled guilty to 16 offences committed over a one year period - The sentencing judge imposed a total of seven months' imprisonment, utilizing 11 concurrent and five consecutive sentences - The New Brunswick Court of Appeal held that the sentencing judge erred in imposing 11 concurrent sentences absent a temporal nexus between those offences - While three of the sentences had a sufficiently close nexus to impose concurrent sentences, the court varied the remaining sentences to run consecutively, totalling 18 months' impris­onment - See paragraphs 11 to 16.

Criminal Law - Topic 5803

Sentencing - General - Consecutive sen­tences - [See Criminal Law - Topic 5802 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See Criminal Law - Topic 6214 ].

Criminal Law - Topic 5854

Sentence - Theft - The 26 year old ac­cused, a petty thief addicted to dilaudid, pled guilty to: three counts of uttering a forged document; seven counts of theft under $5,000 (indictable); two counts of theft under $5,000 (summary conviction); one count of theft by false pretences and three counts of breach of probation (indict­able) - The offences were committed over a one year period - The judge imposed a cumulative sentence of seven months' imprisonment plus two years' probation - The Crown appealed, submitting that the total sentence was demonstrably unfit - The New Brunswick Court of Appeal substituted a sentence of 18 months' im­prisonment, finding a total sentence of seven months demonstrably unfit - The accused was a repeat offender with a re­lated criminal record - Some offences were committed while awaiting trial on other matters, necessitating a sentence em­phasizing specific and general deterrence - Further, the breaches of probation had to be denounced and the public had to be protected from offenders charged with repeated indictable thefts - See paragraph 15.

Criminal Law - Topic 5869

Sentence - False pretences - [See Criminal Law - Topic 5854 ].

Criminal Law - Topic 5876

Sentence - Forgery - [See Criminal Law - Topic 5854 ].

Criminal Law - Topic 5898

Sentence - Breach of probation - [See Criminal Law - Topic 5854 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sen­tence - Powers of appeal court (incl. stan­dard of review) - The New Brunswick Court of Appeal stated that "Courts of appeal must afford considerable deference to sentencing judges. An appeal against sentence under Part XXI of the Criminal Code stands to be determined following a consideration of the 'fitness of the sen­tence'. ... Courts of appeal are not at liber­ty to substitute their view of the appro­priate sentence for that of the sentencing judge unless the record reveals a material error of law, an error in principle, or un­less the sentence is clearly unreasonable." - See paragraph 9.

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sen­tence - Considerations - Where sentence of trial court has been fully or partially served - The New Brunswick Court of Appeal held that an accused's sentence of seven months' imprisonment plus two years' probation was manifestly unfit - Since the accused had served the custodial portion of the sentence, the issue was whether the accused should serve an additional 11 months or whether execution of a "fit" sentence of 18 months should be stayed - The court ordered the accused reincar­cerated - There was nothing inherently harsh or oppressive in reincarcerating an accused who had served a sentence that was demonstrably unfit - However, there were special circumstances where reincar­ceration would be unjust - Four factors to be considered were (1) the seriousness of the offences; (2) the elapsed time between serving the sentence and the date the sen­tence appeal was heard and decided; (3) whether the Crown or accused was at fault for the delay; and (4) the impact of rein­carceration on the accused's rehabilitation - The first factor favoured the accused, the second factor favoured the Crown (only four month delay), the third factor was neutral (no fault on either side); and the fourth factor favoured the Crown (no evidence that reincarceration would detri­mentally affect the accused's rehabilitation where no progress made in that area) - See paragraphs 17 to 40.

Cases Noticed:

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, refd to. [para. 9].

R. v. LeBlanc (G.A.) (2003), 264 N.B.R.(2d) 341; 691 A.P.R. 341; 2003 NBCA 75, refd to. [para. 10].

R. v. Munn (P.J.N.) (2004), 272 N.B.R.(2d) 269; 715 A.P.R. 269; 2004 NBCA 44, refd to. [para. 10].

R. v. Dubé (D.C.) (2004), 268 N.B.R.(2d) 399; 704 A.P.R. 399; 2004 NBCA 9, refd to. [para. 10].

R. v. Donovan (B.) (2004), 272 N.B.R.(2d) 279; 715 A.P.R. 279; 2004 NBCA 55, refd to. [para. 10].

R. v. Guignard (M.) (2005), 282 N.B.R.(2d) 346; 738 A.P.R. 346; 2005 NBCA 35 (C.A.), refd to. [para. 10].

R. v. Doiron (J.S.) (2005), 282 N.B.R.(2d) 81; 738 A.P.R. 81; 2005 NBCA 30, refd to. [para. 10].

R. v. Marley (K.L.) (2006), 299 N.B.R.(2d) 169; 778 A.P.R. 169; 2006 NBCA 47, refd to. [para. 10].

R. v. Gallon (R.S.) (2006), 297 N.B.R.(2d) 317; 771 A.P.R. 317; 2006 NBCA 31, refd to. [para. 10].

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. 12].

R. v. Johnson (D.) (1996), 182 N.B.R.(2d) 373; 463 A.P.R. 373 (C.A.), refd to. [para. 13].

R. v. Francis (J.) (2001), 240 N.B.R.(2d) 159; 622 A.P.R. 159; 2001 NBCA 81, refd to. [para. 13].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 13].

R. v. Hunt (H.T.) (2003), 258 N.B.R.(2d) 383; 676 A.P.R. 383 (Q.B.), leave to appeal denied [2004] N.B.R.(2d) Uned. 50; 2004 NBCA 37, refd to. [para. 15].

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. 18].

R. v. R.N.S., [2000] 1 S.C.R. 149; 249 N.R. 365; 132 B.C.A.C. 1; 215 W.A.C. 1; 2000 SCC 7, refd to. [para. 18].

R. v. R.A.R., [2000] 1 S.C.R. 163; 249 N.R. 322; 142 Man.R.(2d) 282; 212 W.A.C. 282; 2000 SCC 8, refd to. [para. 18].

R. v. L.F.W., [2000] 1 S.C.R. 132; 249 N.R. 345; 185 Nfld. & P.E.I.R. 1; 562 A.P.R. 1; 2000 SCC 6, refd to. [para. 19].

R. v. Boudreau (1977), 16 N.B.R.(2d) 716; 21 A.P.R. 716 (C.A.), refd to. [para. 21].

R. v. Cormier (1986), 70 N.B.R.(2d) 107; 179 A.P.R. 107 (C.A.), refd to. [para. 22].

R. v. Mitchell (1981), 29 Nfld. & P.E.I.R. 125; 82 A.P.R. 125 (P.E.I.C.A.), refd to. [para. 22].

R. v. Cormier (J.G.) (1992), 127 N.B.R.(2d) 181; 319 A.P.R. 181 (C.A.), refd to. [para. 24].

R. v. Karalash; R. v. Hryciw (1990), 66 Man.R.(2d) 159 (C.A.), refd to. [para. 26].

R. v. Shalley (J.D.) (2005), 201 Man.R.(2d) 142; 366 W.A.C. 142; 2005 MBCA 150, refd to. [para. 27].

R. v. G.C.F. (2004), 189 O.A.C. 29; 71 O.R.(3d) 771 (C.A.), refd to. [para. 28].

R. v. Partridge (C.S.) (2005), 238 N.S.R.(2d) 373; 757 A.P.R. 373; 2005 NSCA 159, refd to. [para. 29].

R. v. Birchall (R.D.) (2001), 155 B.C.A.C. 273; 254 W.A.C. 273; 2001 BCCA 356, refd to. [para. 30].

Counsel:

Cameron H. Gunn, for the appellant;

Edward L. Derrah, for the respondent.

This appeal was heard on April 19, 2006, before Larlee, Robertson and Richard, JJ.A., of the New Brunswick Court of Appeal.

The judgment of the Court was rendered orally in both official languages on May 18, 2006, with written reasons delivered jointly by Larlee and Robertson, JJ.A., on August 3, 2006.