R. v. Jilg

R. v. Jilg

The sentencing judge erred in principle by failing to consider whether appropriately restrictive conditions of a conditional sentence could reduce the accused's risk to the community to a minimal level as required by Proulx; the appellate court therefore substituted a 12‑month conditional sentence with strict conditions, admitted only the damage estimate as fresh evidence for the un‑sentenced mischief count and referred the mischief count back for sentencing.

Citation
2010 BCSC 1476
Parties
Crown: Regina; Accused/appellant: Ernst Tobias Jilg
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
21 October 2010
Procedural Posture
Criminal Appeal / Sentence Appeal From Provincial Court to Supreme Court of British Columbia
Outcome
Appeal allowed in part: sentencing judge's failure to consider conditional sentence conditions was error of law; custody converted to a 12‑month conditional sentence with conditions; mischief count remitted for sentencing; firearms ban and DNA order preserved; limited fresh evidence admitted (damage estimate).
Legal Topics
Assault Causing Bodily Harm, Conditional Sentence, Fresh Evidence on Appeal, Danger to the Community, Sentencing Principles (s.718, S.718.1)
Source Language
English
Criminal Law Sentencing Evidence Assault Causing Bodily Harm Conditional Sentence Fresh Evidence on Appeal Danger to the Community Sentencing Principles (s.718, S.718.1)

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Parties

Regina

Crown

Ernst Tobias Jilg

Accused/appellant

Procedural Posture

Criminal Appeal / Sentence Appeal From Provincial Court to Supreme Court of British Columbia

Legal Issues

  1. 1 Whether fresh evidence should be admitted on appeal from sentence
  2. 2 Whether the sentencing judge erred by failing to assess whether conditions of a conditional sentence could reduce the risk to the community (Proulx)
  3. 3 Whether the accused posed a danger to the community warranting incarceration

Ratio Decidendi

The sentencing judge erred in principle by failing to consider whether appropriately restrictive conditions of a conditional sentence could reduce the accused's risk to the community to a minimal level as required by Proulx; the appellate court therefore substituted a 12‑month conditional sentence with strict conditions, admitted only the damage estimate as fresh evidence for the un‑sentenced mischief count and referred the mischief count back for sentencing.

Court Disposition

Appeal allowed in part: sentencing judge's failure to consider conditional sentence conditions was error of law; custody converted to a 12‑month conditional sentence with conditions; mischief count remitted for sentencing; firearms ban and DNA order preserved; limited fresh evidence admitted (damage estimate).

Orders

  • Substitute sentence: 12 month conditional sentence with specified conditions
  • Condition: first six months residence restriction except for work, religious services, medical/dental/legal appointments and weekend shopping between 10:00 and 14:00