Date: 20020118
NOVA SCOTIA COURT OF APPEAL
[Cite as: R. v. Roach, 2002 NSCA 9]
Oland, Freeman and Hamilton, JJ.A.
BETWEEN:
BARRY ANDREW ROACH
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
Counsel: The appellant in person
Kenneth W. F. Fiske, Q.C. for the respondent
Appeal Heard: January 15, 2001
Judgment Delivered: January 18, 2002
THE COURT: The appeal is allowed per reasons for judgment of Hamilton, J.A.; Freeman and Oland, JJ.A. concurring.
Hamilton, J.A.:
[1] Barry Andrew Roach applies for an extension of time within which to appeal his sentence. He also applies for leave to appeal and, if granted, appeals the sentence of two years’ imprisonment imposed on him by Judge D. W. MacDonald on July 4, 2001, following his guilty plea to break, enter and theft of three helmets and an all-terrain vehicle from a locked shed.
[2] During the sentencing hearing the Crown recommended a six-month sentence but Mr. Roach personally, and through his experienced counsel, requested a two-year sentence to be served in a federal institution. The reasons given for seeking federal time were that he was having a difficult time in the correctional centre and wanted out, that Mr. Roach was afraid he would hurt someone in these circumstances, that there were no programs available at the correctional centre, and that he wanted to get into some programs at a federal institution.
[3] Mr. Roach was 28 years old at the time of the offence and had 21 prior convictions, including three assaults, six thefts, two possessions of stolen property and several failures to comply with probation orders and recognizances, spanning a period of seven years. In 1999 he received a twelve-month conditional sentence for five charges including theft under $5,000, and in 2000 he was fined $500 for a theft under $5,000.
[4] Mr. Roach claims the appeal should be allowed because he was not in his “right state of mind” at the sentencing hearing for various reasons. He also claims that his counsel did not properly represent him.
[5] Despite the Crown’s recommendation for a six-month sentence at the sentencing hearing, the Crown argues the appeal should be dismissed on the basis the sentence imposed is a fit sentence since it is within the appropriate range of sentence considering the nature of the offence, the circumstances of the offender and especially considering Mr. Roach’s prior criminal record. The Crown argues there is no support for Mr. Roach’s allegation that he was not in the “proper state of mind” at the sentencing hearing, given his logical and clear statement to the judge of his reasons for wanting to serve federal time. The Crown also argues there is nothing in the record to indicate that Mr. Roach’s counsel was ineffective.
[6] The powers of the court on appeal from a sentence are governed by Section 687 of the Criminal Code. Absent an error in principle, failure to consider a relevant factor or an over emphasis of the appropriate factors, an appellate court should only intervene to vary a sentence if it is convinced it is “demonstrably unfit”: R. v. C.A.M.,[1996] 1 S.C.R. 500 (§90).
[7] I am not persuaded from the record that Mr. Roach’s state of mind at the sentencing hearing justifies a variation of the sentence as Mr. Carriere’s state of mind did in R. v. Carriere [1994] BCJ No. 2022 (B.C.C.A.). In that case, Mr. Carriere requested the sentence of two years plus one day that was imposed, at a time when he had hepatitis A and B and cirrhosis of the liver and did not think the health facilities in the provincial institutions were adequate. In that case the court accepted that Mr. Carriere’s health caused him emotional stress at the sentencing hearing and therefore varied his sentence to the 15 months originally indicated by the sentencing judge, even though the litigants agreed, and the court accepted, that both the 15-month and the two-year sentence were within the range of a fit sentence.
[8] Nor am I persuaded from the record that there is any basis for Mr. Roach’s claim of ineffective legal counsel.
[9] There is no suggestion the sentence was made on an erroneous footing as was found to be the case in R. v. Koster [1996] BCG No. 371(B.C.C.A.). In that case, the Crown recommended a sentence of no more than six months but Mr. Koster, who believed at the time that he had AIDS, asked for a federal sentence so his family would be spared having to watch him die. He was given such a sentence, even though the sentencing judge said this would be a longer sentence than he would have otherwise imposed. Upon learning that he did not have AIDS, Mr. Koster appealed his sentence and was successful in having his sentence reduced to the six months the Crown had requested at the sentence hearing because of his erroneous belief as to the state of his health at the time of sentencing.
[10] In this case, the decision of the sentencing judge is brief and it is not clear what sentence he would have imposed without Mr. Roach’s request. His decision makes it clear however that he considered two years within the range of sentence available, and that he took into account Mr. Roach’s request, as well as his prior criminal record in setting the sentence. The decision also specifically refers to the ability of Mr. Roach to access programs in a federal institution and to his being on remand until the trial of other charges. The wording of the sentencing judge’s decision suggests he would not have imposed a two-year sentence if not requested by Mr. Roach to do so when it states:
...and, quite frankly, given the record and the reasons for the request advanced by Mr. Roach, I am going to impose a two-year federal penitentiary term for this offence.
[11] Mr. Roach had pleaded guilty. In considering his circumstances the sentencing judge did not have a pre-sentence report available to him.
[12] Having considered the sentencing decision, including the Crown’s recommendation for a six-month sentence, and having considered the submissions of the appellant and respondent, I am not satisfied the sentence imposed is a fit sentence. This theft of items from a shed was a property offence and did not involve violence or break and entry into a dwelling place. This was Mr. Roach’s first conviction for break, enter and theft.
[13] The facts of this case distinguish it from R. v. Rogers (1993) 118 NSR (2d) 99 (N.S.C.A.). There a two-year sentence was upheld on appeal for break, enter and theft into a dwelling house by a 29-year-old with 32 prior convictions, including 14 break and enters, two robberies and several theft related charges. He was armed at the time of the offence.
[14] Given the appellant’s reasons for filing the notice of appeal three days late and given the Crown’s consent, I would grant the extension to file a notice of appeal requested by Mr. Roach. I would also grant leave to appeal and allow the appeal and impose a sentence equal to the time already served by Mr. Roach.
[15] I want to note, however, that I would allow the appeal reluctantly given the part Mr. Roach played in its imposition in the first place, which input the sentencing judge’s decision makes clear he took into account in setting this sentence. I am mindful of the comment of Wood, J.A. at page 5 of the Carriere case, supra, “...I do not think that where a sentence is imposed at the direct request of the appellant the court should too easily accommodate a change of mind on the part of the prisoner” and the comment of Ryan, J.A. at page 5 in the same case “to allow this sentence appeal may be said to have the appearance of permitting the accused to manipulate the system for his own benefit”.
Hamilton, J.A.
Concurred in:
Freeman, J.A.
Oland, J.A.