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SENTENCING - Imprisonment - Probation - Time already served - Jurisdiction to impose sentence

Wednesday, July 11, 2018 @ 8:14 AM  

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Appeal by the offender, Walsh, from a sentence for aggravated assault and assault with a weapon. In 2008, the offender and another individual were involved in a physical confrontation. The offender pursued the man and stabbed him in the back. The offender was convicted in 2009. In 2011, the offender was declared a dangerous offender and an indeterminate sentence was imposed. In 2017, the Court of Appeal set aside the dangerous offender designation and remitted the matter for sentencing. The sentencing judge acknowledged the Crown's concession that the offender had served sufficient time in custody. The sentencing judge found that a four-year sentence would have been appropriate and thus imposed a sentence of time served, plus one day, with a two-year probation order. The offender appealed. He submitted it was unjust to impose a probationary term given that he served more time in a federal penitentiary than would be considered proportionate for similar offences and similar offenders.

HELD: Appeal dismissed. Leaving aside the possibility of a collateral attack on a prior order of the Court, s. 759(3)(a)(ii) of the Code provided the Court of Appeal with authority to order a new hearing on sentencing, including determination of a determinate sentence following the setting aside of a dangerous offender designation. The sentencing judge was not precluded from imposing a probation order given the time already served, as the matter proceeded by way of a de novo hearing and time served prior thereto did not form part of the newly imposed sentence. Legal authority existed for a probation order given that the custodial sentence imposed was for one day. The overall sentence was not unfit and the imposition of a probation order was not manifestly inappropriate given the offender's violent criminal history and real risk of recidivism. The terms of probation were not unduly onerous. Sentence: one-day imprisonment; two years’ probation.

R. v. Walsh, [2018] B.C.J. No. 1067, British Columbia Court of Appeal, J.E.D. Savage, J.J.L. Hunter and S.A. Griffin JJ.A., June 6, 2018. Digest No. TLD-July92018005