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SENTENCING - Assault causing bodily harm - Conditional sentence - Joint submissions

Friday, August 28, 2020 @ 5:42 AM  

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Appeal by the accused from the dismissal of his appeal from sentence for assault causing bodily harm. The appellant assaulted the victim with a piece of wood after the victim accosted him holding a steel bar. After the victim fell, the appellant kicked the victim in the face and left. The appellant agreed to plead guilty in exchange for a joint submission that he be sentenced to a six-month conditional sentence order followed by 12 months’ probation. The trial judge rejected the joint submission and imposed a six-month custodial sentence, followed by 24 months’ probation. The trial judge found the sentence proposed unfit. In concluding that a conditional sentence order would not be appropriate, the trial judge noted that it would offend the principle of parity, would not achieve the objectives of denunciation and deterrence and would not be consistent with the fundamental purpose and principles of sentencing. The appeal judge suggested the focus on the appeal was on the reasonableness of the joint submission and agreed with the trial judge that a reasonable and informed person, aware of the circumstances of the case, would not find the joint submission appropriate. The appellant had served 60 days. 

HELD: Appeal allowed. The appeal judge erred in law in articulating the test as an assessment of the reasonableness of the joint submission. The trial judge erred in assessing the joint submission by first determining what sentence would have been imposed after trial and comparing it to the joint submission. In defaulting first to a conventional sentencing approach, including considering whether a conditional sentence order would keep the community safe, the trial judge failed to account for the systemic benefits of joint submissions and the admitted weaknesses in the Crown’s case. In this case, the Crown was aware that the appellant was demonstrating pro-social conduct, supporting a young family, and recognizing his alcohol misuse. He had, over the year pending his appeal hearing, demonstrated his ability to comply with strict terms of release, including abstinence from drugs and alcohol and compliance with a curfew.  Sentence: Time served; 12 months’ probation.

R. v. Mantla, [2020] N.W.T.J. No. 29, Northwest Territories Court of Appeal, J.D.B. McDonald, S. Cooper and D. Pentelechuk JJ.A., July 17, 2020. Digest No. TLD-August242020009