C.A.C No. 02976
NOVA SCOTIA COURT OF APPEAL
Cite as: R. v. Lawrence, 1994 NSCA 149
Clarke, C.J.N.S,; Hart and Pugsley, JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN ) Kenneth W. Fiske, Q.C.
) for the Appellant
Appellant )
)
)
- and - )
)
) Shawn A. Brown
) for the Respondent
)
JAMES EDWARD LAWRENCE )
)
Respondent )
)
) Appeal Heard:
) May 31, 1994
)
) Judgment Delivered:
) May 31, 1994
)
)
)
THE COURT: Appeal allowed as per oral reasons for judgment of Pugsley, J.A.; Clarke, C.J.N.S. and Hart, J.A. concurring.
The reasons for judgment of the Court were delivered orally by:
PUGSLEY, J.A.:
The Crown applies for leave to appeal, and if granted, appeals from a sentence imposed on the Respondent on November 16, 1993, of six months, for conviction for theft, contrary to Section 348(1)(b) of the Criminal Code.
The trial judge directed the sentence to be served concurrent with an earlier sentence imposed in August 1993.
The respondent, age 27, with the co-accused, Michael Antoine, broke into a service station at Saltsprings, Pictou County on May 12, 1993. A window was broken, and over $l,000.00 in cash and 119 packages of cigarettes were taken.
There is a regrettable lack of information with respect to the respondent's marital status, education, or any details concerning the respective parts played by the respondent and Mr. Antoine in the commission of the offence.
Both individuals pleaded guilty. We are advised that all of the property was recovered.
Mr. Antoine had been sentenced in September of l993 before another judge, to a term of twelve month imprisonment consecutive to time being served. Antoine, at the time, was two months short of his 22nd birthday, and had a record of criminal convictions significantly less extensive than that of the respondent.
Crown counsel was apparently unaware of the disposition of the Antoine matter when submissions were addressed in November of l993 respecting the respondent.
With respect to the respondent, Crown counsel advised the trial court:
"As far as record goes this individual does have a very extensive record. The information that I have goes back to 1983, possession of stolen
property. In 86, there's a two charges of break and enter which he was sentenced to federal custody. Other charges, a charge under Section 128 in 1986, breach of probation in '89, in 1990, theft under, again in '90, possession of stolen property. It appears there's some more break and enter charges as well. . . . In August of '91 it appears that there was a theft related matter. I understand that this individual is presently in custody. I 'm not aware of the particulars of his, or the reason why he is in custody, whether it's a charge that was back in 1991 or something recent. I don't have any record of it. In any event, I would ask for a period of custody consecutive to his present sentence."
This very cursory reference to the past record of the respondent fails to accurately present to the court the length of, or the seriousness of the respondent's criminal record. The respondent, in fact, had accumulated 27 criminal convictions between March of 1982 and August of 1993 including l6 convictions for break and enter.
Respondent's counsel advised the court that the respondent had a serious addiction to alcohol and was intoxicated at the time he committed the offence. It was pointed out that the respondent cooperated fully with the police and that since his arrest for this offence, he completed a living skills program, a cognitive parenting course (the respondent apparently has a family), as well as attended a substance abuse program and an alcoholics anonymous program at Springhill Penitentiary.
He was transferred to a minimum security institution at Westmorland and was released from that institution on March 23, 1994. He is presently located at a half-way house in Truro under supervision.
The Crown submits that the sentence was grossly inadequate and that if the trial judge had complete details of the respondent's criminal and personal history, that the term of imprisonment imposed would have been much greater. Notwithstanding the lack of information, Crown counsel argues that the trial judge erred in directing a term of six months concurrent, to a sentence which had been imposed only three months previous.
The respondent raises the following arguments:
l. There are mitigating factors in that the items taken from the service station were recovered and there was both an inculpatory statement and a guilty plea entered by the respondent.
2. The respondent has a fundamental right to full disclosure and to be fully informed as to the case he must meet in the initial proceedings, relying on s. 7 of the Charter, R. v. Stinchcomb (1991), 68 C.C.C. (3d) 1 (S.C.C.), and R. v. Hogan (1979), 34 N.S.R. (2d) 641, a decision of this Court. Counsel stressed that it was not open to the Crown to file the complete record of the respondent's criminal past or to refer to the Antoine disposition before this court when the information was not before the trial judge.
3. The respondent completed a number of programs while incarcerated; to be returned to prison after his release in March, could retard his efforts at rehabilitation, citing the decision of this Court in R. v. Bartkow (1978), 24 N.S.R. (2d) 518.
In considering the "fitness" of the sentence appealed against, it is essential to keep in mind that the primary goal of sentencing is the protection of the public.
The respondent's criminal career commenced when he was a youth of 17. The catalogue of convictions for the next decade reveals far more than a random pattern, but rather the record of one who has devoted his life to stealing from others.
The respondent is not a youthful offender. He was on parole at the time this offence was committed.
In our opinion, the sentence imposed by the trial judge was manifestly inadequate.
The horrendous record of the respondent and the necessity to stress general deterrence dictates this conclusion.
No principle of Stinchcombe has been violated in reaching this decision. The failure of Crown counsel to introduce the full criminal record at trial did not impair the right of the respondent to make full answer and defence. All the details concerning his past record were of course fully known to the respondent. Both he and his counsel can be taken to reasonably expect that his past criminal record would be a matter of comment by Crown counsel respecting submissions on sentencing.
In R. v. Hogan, supra, Jones, J.A. on behalf of the Court noted that there has been a relaxation of the rule against admitting new evidence on sentence appeals:
"...particularly where the evidence relates to criminal records and pre-sentence reports." (at p. 652)
We also note that Rule 65-13(1)(a)(viii) provides:
(1) In sentence appeals the appellant shall, within thirty days from the service of the notice of appeal:
(a) file with the Registrar five copies of an appeal book for the use of the Court. The appeal book shall contain, in the following order:
(viii) the criminal record, if any, of the accused.
R. v. Barktow, supra, is distinguishable on the facts. There the respondent was on full release.
In that case, the court noted that if the respondent returned to jail to serve the balance of a 20 month sentence, he might well have to spend only a few weeks before being admitted to parole.
The comments of Clarke, C.J.N.S. on behalf of the court in R. v. Desmond (1992), 109 N.S.R. (2d) 174 at 176 are directly applicable:
"Disinclined as we are to send the respondent back to jail to serve the remainder of a longer term paraphrasing this Court in R. v. Barktow, this disinclination is overridden by the need to deter others by a much greater sentence."
We reach this conclusion without consideration of the sentence imposed on Mr. Antoine.
While there is no rule of law that sentences must be strictly compared, there appears little justification for the respondent's sentence to be so disparate from that imposed upon Mr. Antoine. Indeed, the two can only be explained in light of the failure of Crown counsel to advise the trial judge of the Antoine disposition.
This court, however, is concerned with the fitness of the sentence imposed on the respondent before us.
We grant leave to appeal, allow the appeal, and vary the sentence imposed by the trial judge to a term of imprisonment of 15 months.
J.A.
Concurred in:
Clarke, C.J.N.S.
Hart, J.A.