C.A.C. No. 116619
NOVA SCOTIA COURT OF APPEAL
Clarke, C.J.N.S.; Chipman and Roscoe, JJ.A.
Cite as: R. v. C.A.D., 1995 NSCA 197
BETWEEN:
D. (C.A.) ) Christopher Manning
) for the Appellant
Appellant )
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) James C. Martin
) for the Respondent
HER MAJESTY THE QUEEN )
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Respondent ) Appeal Heard:
) September 19, 1995
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) Judgment Delivered:
) September 19, 1995
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THE COURT: Appeal dismissed from disposition imposed on young offender for possession of cocaine for the purpose of trafficking, per oral reasons for judgment of Clarke, C.J.N.S.; Chipman and Roscoe, JJ.A. concurring.
The reasons for judgment of the Court were delivered orally by:
CLARKE, C.J.N.S.:
The appellant, a young offender, seeks to appeal from his disposition of fifteen months open custody followed by two years probation.
He was seventeen when he pled guilty to the possession of cocaine for the purpose of trafficking contrary to section 4(2) of the Narcotic Control Act.
Crack cocaine weighing 19.8 grams and having an estimated street value of $4,000.00 was involved. He was associated in the venture with two adult males.
The ground of appeal is that the Judge of the Youth Court erred in law in failing to give effect to the declaration of principle contained in s. 3 of the Young Offenders Act by overemphasizing the principle of general deterrence and failing to give sufficient consideration to the need for reformation and rehabilitation of the young offender.
A review of the remarks made by Judge Campbell at the disposition hearing indicates that he was alive to the principles involved in a matter such as this. In referring to s. 3 of the Young Offenders Act (which inadvertently is typed as s. 30 in the transcript), Judge Campbell noted it
"contains among other directions to the sentencing Judge a requirement that the Court should not interfere with the liberty of the Young Offender without ruling out other avenues. But they should deal with the Young Offender in a manner consistent with their well being, taking into consideration the interest of society. That has been interpreted and I interpret it to mean that deterrence is a legitimate consideration when I deal with you."
In the course of his remarks Judge Campbell makes the points that,
- the appellant should take responsibility for his actions and be accountable for them (s. 3(1)(a));
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- in spite of his physical and mental maturity and level of intelligence, the facts and submissions before the Court are persuasive that he has special needs requiring the guidance that comes from supervision (s. 3(1)(c));
- the need to protect Society from the serious and dreaded offence of trafficking in crack cocaine is a legitimate consideration which appears to be Judge Campbell's way of referring to s. 3(1)(f).
While deterrence plays a part in young offender dispositions, the principle of proportionality and other factors including rehabilitation and future prospects must be considered. See R. v. M. (J.J.) (1993), 81 C.C.C. (3d) 487, S.C.C.
The disposition imposed on the appellant, the maximum which could be three years, when compared against the length of sentences this Court has imposed on adult offenders where cocaine is involved is, mathematically at least, proportional. While the words rehabilitation and reformation are not specifically stated by the Judge of the Youth Court in his remarks, a careful reading of his disposition satisfies this Court that they underlie what he had to say. He was imposing a disposition fashioned to his findings of the needs of the appellant. He was not imposing a disposition by which the appellant would "be obliged to accept the responsibility for all the young offenders of his ... generation". (R. v. M.(J.J.), supra, at 497)
In determining that the disposition imposed upon the appellant is fit, we are mindful of s. 28 of the Young Offenders Act which will cause a review of his disposition after one year expires on April 4, 1996.
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While leave to appeal is granted, the appeal is dismissed.
L.O.C.
Concurred in:
Chipman, J.A.
Roscoe, J.A.