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APPEALS - Procedure

Wednesday, November 01, 2017 @ 8:42 AM  


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Application by the provincial Crown to rehear an appeal involving Bennett and the federal Crown. Bennett was convicted and sentenced for drug offences and breaches of recognizance and probation. He drafted a notice of appeal without the aid of counsel. The notice was deficient, as it failed to mention the appeal of the sentences for the breach offences dealt with by the provincial Crown, listing only the federal drug offences. At the hearing, the federal Crown consented to amendments correcting the deficiencies. The judge considered it unnecessary to delay the matter to provide the provincial Crown with notice of the changes, as the sentences for the breaches of recognizance and probation were not under appeal. However, the appeal involved engagement of the totality principle, factoring those sentences into the overall assessment. Although those sentences were not reduced, the result of the totality analysis on the drug offences changed the breach sentences from incarceration to a conditional sentence. The provincial Crown sought to have the appeal reheard in order to make submissions.

HELD: Application dismissed. While it may have been more appropriate to separate the breach sentences from the remaining offences, the custodial time served by the offender by the time of the hearing meant the Court could have regarded those sentences as having been completed, leaving only the federal offences to be dealt with in the context of totality. No practical impact on Bennett arose from the manner in which the overall sentences were amended to properly reflect the totality principle. In such circumstances, there was no justification for rehearing the appeal.

R. v. Bennett, [2017] N.J. No. 348, Newfoundland and Labrador Supreme Court - Court of Appeal, B.G. Welsh, C.W. White and L.R. Hoegg JJ.A., October 10, 2017. Digest No. TLD-October302017006