R. v. Martinez

R. v. Martinez

Court held the break and enter was serious and warranted imprisonment but did not meet the statutory/case law criteria for a 'home invasion' because there were no weapons, no explicit threats and no gratuitous violence; sentencing must be individualized focusing on aggravating and mitigating factors, resulting in a global custodial sentence of 53 months (50 months for s.348 after 4 months remand credit, plus 3 months consecutive for s.145), a DNA order and a firearms prohibition of 14 years and five months (10 years plus penitentiary term).

Citation
2007 NSPC 9
Parties
Crown: R.; Accused: Danny Bryan Martinez
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
24 January 2007
Procedural Posture
Criminal Sentencing / Sentencing Hearing
Outcome
Convicted and sentenced
Legal Topics
Break and Enter (dwelling), Failure to Attend Sentenced Hearing, Home Invasion (classification Issue), Sentencing Principles (proportionality, Parity, Restraint), DNA Order, Firearms Prohibition
Source Language
English
Criminal Law Sentencing Break and Enter (dwelling) Failure to Attend Sentenced Hearing Home Invasion (classification Issue) Sentencing Principles (proportionality, Parity, Restraint) DNA Order Firearms Prohibition

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Parties

R.

Crown

Danny Bryan Martinez

Accused

Procedural Posture

Criminal Sentencing / Sentencing Hearing

Legal Issues

  1. 1 Appropriate sentence for s.348(1)(d) breaking and entering with occupant present
  2. 2 Whether the offence qualifies as a 'home invasion' for sentencing benchmark purposes
  3. 3 Whether failure to attend (s.145) should aggravate the s.348 sentence or be sentenced separately

Ratio Decidendi

Court held the break and enter was serious and warranted imprisonment but did not meet the statutory/case law criteria for a 'home invasion' because there were no weapons, no explicit threats and no gratuitous violence; sentencing must be individualized focusing on aggravating and mitigating factors, resulting in a global custodial sentence of 53 months (50 months for s.348 after 4 months remand credit, plus 3 months consecutive for s.145), a DNA order and a firearms prohibition of 14 years and five months (10 years plus penitentiary term).

Court Disposition

Convicted and sentenced

Orders

  • Sentence for s.348(1)(d): 54 months custody less 4 months remand credit = 50 months custody
  • Sentence for s.145: 3 months custody to be served consecutively