R. v. Jacque

Date: 20120316 Docket: 11/73 Citation: R. v. Jacque, 2012 NLCA 18 Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN APPELLANT AND: HERBERT JACQUE RESPONDENT Coram: Welsh, Rowe and Harrington JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Happy Valley – Goose Bay, NL Appeal Heard: March 5, 2012 Judgment Rendered: March 16, 2012 Reasons for Judgment by Rowe J.A. Concurred in by Welsh and Harrington JJ.A. Counsel for the Appellant: Sheldon Steeves Counsel for the Respondent: Michael Ralph Page: 2 Rowe J.A.: [1] This is an appeal against sentence by the Crown pursuant to section 676(1)(d) of the Criminal Code. In December 2006, the respondent, Herbert Jacque, was charged with two counts of sexual assault. He was convicted of both the “Postville” count in February 2010 and the “Goose Bay” count in June 2011. [2] For the “Postville” count, Mr. Jacque was sentenced to two years imprisonment and two years probation. He appealed his sentence to this Court. In R. v. Jacque, 2011 NLCA 12, this Court varied the sentence by deducting 197 days, being credit for time on remand. In so doing, this Court addressed whether Mr. Jacque should get credit on a “two for one” basis or on a “one for one” basis for the 197 days that he had spent on remand. [3] In the “Goose Bay” count (the case in this appeal), Mr. Jacque was sentenced to 30 months imprisonment, which the sentencing judge reduced by 197 days as credit for time on remand. [4] The sentencing judge did so being aware of this Court’s decision on the “Postville” count. He wrote (in R. v. Jacque (2011), 314 Nfld. & P.E.I.R. 277 (NLPC)): [41] In R. v. Jacque, 2011 NLCA 12, Hoegg, J.A. credited the offender on his earlier sexual assault with 197 days of pre-trial custody, the credit being calculated on a one-to-one basis. In effect the Court of Appeal denied him a two- for-one credit for 197 days time served on remand. Defence counsel in this case now asks the court in effect to give the offender a credit of 197 days so as to reduce his sentence on this offence, on the basis that he was entitled to a two-for- one credit for time served in total. [5] The sentencing judge then purported to exercise his discretion and give Mr. Jacque credit for time on remand for what was (in effect) the other half of a “two for one” basis. [6] In this appeal, counsel for Mr. Jacque underlined that an appellate court should not lightly interfere with the exercise of discretion by a sentencing judge in giving credit for time on remand. [7] The Crown took the view that the sentencing judge in the “Goose Bay” count had no discretion to exercise, in that the discretion to be exercised regarding credit for time on remand had already been exercised by this Court in the “Postville” case. Page: 3 [8] I am persuaded by the Crown’s position. The issue of credit for the 197 days on remand was dealt with by this Court in the “Postville” case; thus, there remained no matter of credit for the 197 days on remand to be decided in the “Goose Bay” case. [9] Leave to appeal is granted. The appeal is granted and the sentence is varied to the extent of setting aside the 197 day credit for time on remand. _____________________________ M. H. Rowe J.A. I Concur: ___________________________ B. G. Welsh J.A. I Concur: ___________________________ M. F. Harrington J.A.