R. v. Cleary

R. v. Cleary

The mandatory minimum five-year sentence under s.344(1) was lawful and proportionate on these facts; the offence was an armed robbery but not a ‘home invasion’ because there was no forced entry or premeditation; the s.95(1) and s.86(1) sentences run concurrently to the s.344(1) sentence; enhanced remand credit of 99 days (1.5:1 on 66 days) was granted; ancillary orders (DNA, lifetime firearms prohibition, forfeiture) were appropriate and granted.

Citation
2020 NSSC 49
Parties
Crown: Her Majesty the Queen; Accused: Austin Miller; Accused: Cameron Robert Cleary
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
28 January 2020
Procedural Posture
Criminal / Sentencing
Outcome
Guilty pleas accepted; sentenced to global five years imprisonment under s.344(1) with s.95(1) three-year sentence and s.86(1) six-month sentence to run concurrently; enhanced remand credit granted reducing effective custody to 1,726 days (4 years and 266 days); ancillary orders granted; remaining counts dismissed.
Legal Topics
Robbery, Mandatory Minimum Sentences, Possession of Prohibited Firearm, Careless Use of Firearm, Ancillary Orders, Remand Credit, Youthful Offender, Home Invasion Characterization
Source Language
English
Criminal Law Sentencing Firearms Law Robbery Mandatory Minimum Sentences Possession of Prohibited Firearm Careless Use of Firearm Ancillary Orders +3 more

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Parties

Her Majesty the Queen

Crown

Austin Miller

Accused

Cameron Robert Cleary

Accused

Procedural Posture

Criminal / Sentencing

Legal Issues

  1. 1 Whether mandatory minimum under s.344(1) applies and is proportionate
  2. 2 Whether the offence qualifies as a ‘home invasion’ or a lesser armed robbery
  3. 3 Appropriate global sentence and concurrency vs consecutivity for multiple offences

Ratio Decidendi

The mandatory minimum five-year sentence under s.344(1) was lawful and proportionate on these facts; the offence was an armed robbery but not a ‘home invasion’ because there was no forced entry or premeditation; the s.95(1) and s.86(1) sentences run concurrently to the s.344(1) sentence; enhanced remand credit of 99 days (1.5:1 on 66 days) was granted; ancillary orders (DNA, lifetime firearms prohibition, forfeiture) were appropriate and granted.

Court Disposition

Guilty pleas accepted; sentenced to global five years imprisonment under s.344(1) with s.95(1) three-year sentence and s.86(1) six-month sentence to run concurrently; enhanced remand credit granted reducing effective custody to 1,726 days (4 years and 266 days); ancillary orders granted; remaining counts dismissed.

Orders

  • Count 1 (robbery s.344(1)): five years imprisonment
  • Count 7 (possession of prohibited or restricted firearm with ammunition s.95(1)): three years, to run concurrently to Count 1