Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation: R. v. Markie, 2009 NSCA 119

Date: 20091201

Docket: CAC 308818

Registry: Halifax

Between:

Brett Jason Markie

Appellant

v.

Her Majesty the Queen

Respondent

Restriction on Publication:      Restriction on publication pursuant to s. 486.4 of the Criminal Code

Judge:                   The Honourable Justice Hamilton

Appeal Heard:      November 13, 2009, in Halifax, Nova Scotia  

Subject:                Criminal law, Sentencing, Joint Recommendation

Summary:             Provincial Court Judge Alana Murphy sentenced the appellant to 10 years for breaking and entering into a dwelling house on or about April 1, 2005 and sexually assaulting with a weapon an 18 year old girl while he covered her head. This sentence was to be served consecutively to the nine year, eight month sentence the appellant was then serving for twelve robberies and other property related offences he had committed in March and April 2005. She imposed this sentence despite a joint recommendation for a four-year sentence.

Issue:          Did the judge err in rejecting the joint recommendation, in imposing an excessive sentence or by not giving adequate consideration to the principle of totality?

Result:                  Appeal dismissed. The judge did not err. The process she followed when faced with the joint recommendation with which she had some concerns was flawless. Her reasons indicate she understood and considered counsels’ arguments in favour of their joint recommendation and rejected them. She considered all of the appropriate factors in reaching her decision, including the principle of totality.