NOVA SCOTIA COURT OF APPEAL
Citation: R. v. Lewis, 2011 NSCA 49
Date: 20110601
Docket: CAC 338902
Registry: Halifax
Between:
William James Clarke Lewis
Appellant
v.
Her Majesty the Queen
Respondent
Judge(s): Oland, Fichaud and Farrar JJ. A.
Appeal Heard: May 27, 2011, in Halifax, Nova Scotia
Held: Leave to appeal is granted, but appeal is dismissed per reasons for judgment of Oland, J.A.; Fichaud and Farrar, JJ.A. concurring.
Counsel: Mr. Lyle Howe, for the appellant
Mr. Kenneth W.F. Fiske, Q.C., for the respondent
Reasons for judgment:
[1] The appellant plead guilty to 18 charges involving fraud, forgery, uttering or attempting to utter forged documents, theft and breaches of probation. On October 25, 2010, Judge James H. Burrill sentenced him to a term of imprisonment of 1,058 days in the federal penitentiary, taking into account a remand credit, and also made restitution orders. At the conclusion of the hearing of the appeal against sentence, we advised that while we would grant leave to appeal, we would dismiss the appeal with reasons to follow. These are those reasons.
[2] In his decision, the sentencing judge observed that the appellant, then 45 years of age, had been committing offences for over 25 years. He reviewed a pre-sentence report, recounted the appellant's difficult background and aboriginal status, and considered the Gladue factors. In his view, the sentence should emphasize specific deterrence. He stated that the sentence should take rehabilitation into consideration. The judge also reminded himself that the principle of totality must be taken into account. Both the Crown and defence counsel had acknowledged that given the history of the accused, particularly his criminal record which had continued unabated despite previous sentences and incarceration, a period of incarceration was warranted. However, they disagreed as to its duration, with defence counsel seeking provincial rather than federal time. The judge imposed a sentence of 1,058 days incarceration in a federal penitentiary.
[3] Pursuant to s. 675 (1) (b) of the Criminal Code of Canada, (R.S.C., 1985, c. C-46) the appellant applies for leave to appeal from the sentence. He does not contest the individual sentences apportioned to the 18 offenses or the consecutive-concurrent divide ordered by the judge. Nor does he take issue with the remand credit. The appellant submits that the sentencing judge erred at law by imposing a sentence which is unreasonable and demonstrably unfit for the range of similar offences considering the principles of totality and proportionality, and the circumstances of the offense and of the offender.
[4] In R. v. Adams, 2010 NSCA 42, Bateman, J.A. writing for the Court described the totality principle and set out the case law at ¶ 19 to 27. In doing so, she observed at ¶ 20 that in R. v. M. (C.A.), [1996] 1 S.C. R. 500, this principle was referred to as a particular application of the principle of proportionality.
[5] Having examined the record and considered the oral and written submissions and the case law presented by the appellant, we can see no error committed by the sentencing judge as claimed by the appellant. We would grant leave to appeal, but dismiss the appeal.
Oland, J.A.
Concurred:
Fichaud, J.A.
Farrar, J.A.