R. v. Whiteway (J.R.P.), (2010) 301 Nfld. & P.E.I.R. 99 (NLTD(G))

JudgeWhalen, J.
CourtSupreme Court of Newfoundland and Labrador (Canada)
Case DateSeptember 08, 2010
JurisdictionNewfoundland and Labrador
Citations(2010), 301 Nfld. & P.E.I.R. 99 (NLTD(G))

R. v. Whiteway (J.R.P.) (2010), 301 Nfld. & P.E.I.R. 99 (NLTD(G));

    932 A.P.R. 99

MLB headnote and full text

Temp. Cite: [2010] Nfld. & P.E.I.R. TBEd. SE.013

Her Majesty the Queen v. Jonathan Roger Pergolas Whiteway

(200905T0059; 2010 NLTD(G) 141)

Indexed As: R. v. Whiteway (J.R.P.)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Whalen, J.

September 14, 2010.

Summary:

The accused shot and killed his stepmother. He pled guilty to second degree murder. The defence submitted that in calculating any period of parole ineligibility the accused should receive double credit for the 29 months that he had been in custody.

The Newfoundland and Labrador Supreme Court, Trial Division (General), sentenced the accused to life imprisonment without eligibility for parole for 10 years. The court held that s. 719(3) of the Criminal Code did not apply to the question of the period of parole ineligibility and it would allow no "extra credit" for time served. The accused was therefore sentenced to a period of imprisonment for life without eligibility for parole until he had served 10 years of his sentence, to be calculated in accordance with s. 746(a) of the Criminal Code (from the date of the accused's arrest). The court also imposed a 10 year weapons prohibition order and DNA sample order.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - [See Criminal Law - Topic 5881 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See Criminal Law - Topic 5881 ].

Criminal Law - Topic 5881

Sentence - Murder - The accused shot and killed his stepmother in the family home - He went to the basement of the home, took his gun, loaded it and proceeded upstairs to where the victim was sitting on a couch having a cup of tea - He shot her in the head, killing her - He then shot himself, causing serious injury to his lower jaw - The accused pled guilty to second degree murder - 21 years old at the time of the offence - Now almost 24 - No previous criminal record - History of mental illness - The defence submitted that in calculating any period of parole ineligibility the accused should receive double credit for the 29 months that he had been in custody - The Newfoundland and Labrador Supreme Court, Trial Division (General), sentenced the accused to life imprisonment without eligibility for parole for 10 years - The court held that s. 719(3) of the Criminal Code did not apply to the question of the period of parole ineligibility and it would allow no "extra credit" for time served - The accused was therefore sentenced to a period of imprisonment for life without eligibility for parole until he had served 10 years of his sentence, to be calculated in accordance with s. 746(a) of the Criminal Code (from the date of the accused's arrest) - The court also imposed a 10 year weapons prohibition order and DNA sample order.

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. 17].

R. v. Parsons (B.) (2007), 267 Nfld. & P.E.I.R. 191; 811 A.P.R. 191; 2007 NLTD 108, refd to. [para. 20].

R. v. Hart (J.H.) (2007), 271 Nfld. & P.E.I.R. 30; 826 A.P.R. 30; 2007 NLTD 184, refd to. [para. 20].

R. v. Doyle (B.J.) (2003), 222 Nfld. & P.E.I.R. 211; 663 A.P.R. 211; 2003 NLSCTD 20, affd. (2004), 241 Nfld. & P.E.I.R. 125; 716 A.P.R. 125; 2004 NLCA 64, refd to. [para. 20].

R. v. Okkuatsiak (L.H.) (1992), 99 Nfld. & P.E.I.R. 181; 315 A.P.R. 181 (Nfld. T.D.), refd to. [para. 22].

R. v. Allen, 2004 NLSCTD 134, refd to. [para. 29].

R. v. Morrissey (P.), [2003] O.T.C. 1132; 2003 CarswellOnt 5293 (Sup. Ct.), refd to. [para. 29].

R. v. Diep, [2005] A.R. Uned. 158; 2005 CarswellAlta 151 (Q.B.), refd to. [para. 29].

R. v. Tuglavina (J.) (2000), 190 Nfld. & P.E.I.R. 242; 576 A.P.R. 242; 2000 CarswellNfld 397 (T.D.), refd to. [para. 29].

R. v. Hunt (S.E.) (2006), 257 Nfld. & P.E.I.R. 329; 776 A.P.R. 329; 2006 NLTD 117, refd to. [para. 29].

R. v. Nash (A.W.) (2009), 340 N.B.R.(2d) 320; 871 A.P.R. 320; 2009 NBCA 7, refd to. [para. 29].

R. v. VanEindhoven (A.), [2007] Nunavut Cases (CJ) 2; 2007 NUCJ 2, refd to. [para. 38].

R. v. Guignard (M.J.) et al. (2008), 447 A.R. 376; 2008 ABQB 283, refd to. [para. 39].

R. v. Sayers, 2003 NTWSC 69, refd to. [para. 40].

R. v. Frechette (A.L.), [2000] B.C.T.C. 1097; 2000 BCSC 560, refd to. [para. 41].

R. v. Stephen (B.E.) (1999), 244 A.R. 372; 209 W.A.C. 372; 73 Alta. L.R.(3d) 205 (C.A.), refd to. [para. 42].

R. v. Tsyganov (S.) (1998), 172 N.S.R.(2d) 43; 524 A.P.R. 43 (C.A.), refd to. [para. 43].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 719(3) [para. 34]; sect. 746(a) [para. 46].

Counsel:

Tina Walsh, for the Crown;

Ray Kuszelewski, for the accused.

This matter was heard on September 8, 2010, at Gander, Nfld. and Lab., before Whalen, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following decision orally on September 14, 2010.

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