R. v. Charlie
- Citation
- 2020 BCCA 157
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- British Columbia Court of Appeal
- Decision
- 15 May 2020
- Posture
- Criminal Sentence Appeal / Court of Appeal Judgment on Sentence Appeal
- Language
- English
More details
- Court
- British Columbia Court of Appeal
- Decision
- 15 May 2020
- Posture
- Criminal Sentence Appeal / Court of Appeal Judgment on Sentence Appeal
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal is allowed only to the extent of granting enhanced pre‑sentence custody credit; the sentencing judge did not err in her consideration of mitigating factors or in imposing an identical sentence given the circumstances (and the co‑accused's conviction was later set aside), and the misapprehension of the appellant's criminal history was immaterial to the fitness of the sentence; but denial of enhanced credit was legal error and requires reduction of the effective sentence by 4.5 months.
Court disposition
Appeal allowed in part
Orders
- Grant the appellant enhanced pre‑sentence custody credit of an additional 4.5 months
- Reduce the appellant's effective term of imprisonment from 75 months to 70.5 months
02
Material facts
Parties
Regina
Respondent Counsel: J.A.M. DickieNicholas Des Charlie
Appellant Counsel: D.J. McKayAmounts and remedies
- Additional Pre Sentence Credit Months: 4.5
- Effective Sentence Months After Credit: 70.5
- Effective Sentence Months Before Adjustment: 75
03
Procedural history
Posture
Criminal Sentence Appeal / Court of Appeal Judgment on Sentence Appeal
04
Questions and positions
Legal issues
- 01
Whether the sentencing judge failed to give proper weight to the appellant's mitigating factors and breached the parity principle by imposing identical sentences
- 02
Whether the sentencing judge misapprehended the appellant's criminal history and whether that misapprehension materially affected the sentence
- 03
Whether the sentencing judge erred in law by denying enhanced credit for pre‑sentence custody
Party arguments
- Applicant
- The sentencing judge over‑emphasized deterrence, protection and denunciation and failed to give proper weight to the appellant's distinct mitigating circumstances; the judge misapprehended the appellant's criminal record which improperly increased aggravation; and the judge erred in law by refusing enhanced credit for pre‑sentence custody.
- Respondent
- The Crown conceded the denial of enhanced credit was erroneous and accepted enhanced credit should be granted. The Crown argued the misapprehension of the record was immaterial to the ultimate sentence and that identical sentences were not per se unfit given the sentence was near the low end of the range for aggravated sexual assault and the co‑accused's conviction was later set aside.
05
Court’s reasoning
Legal principles
- 01
Criminal Code s. 718.2(b) and R. v. Wallwork, 2009 BCCA 43
Parity principle: similar offenders for similar offences should receive similar sentences
- 02
Criminal Code s. 719(3) through (3.2) and R. v. Romanchych, 2018 BCCA 26
Sentencing credit for pre‑sentence custody and limits on enhanced credit
- 03
R. v. Lacasse, 2015 SCC 64, paras. 117-120
Conduct while on release or undertakings may be aggravating
- 04
General sentencing jurisprudence cited in R. v. Woodward, 2011 BCCA 251
A misapprehension of facts will only vitiate a sentence if it materially affected the result
06
Ratio, limits and disposition
Ratio decidendi
The appeal is allowed only to the extent of granting enhanced pre‑sentence custody credit; the sentencing judge did not err in her consideration of mitigating factors or in imposing an identical sentence given the circumstances (and the co‑accused's conviction was later set aside), and the misapprehension of the appellant's criminal history was immaterial to the fitness of the sentence; but denial of enhanced credit was legal error and requires reduction of the effective sentence by 4.5 months.
Obiter and limits
- The fact identical sentences were imposed is not by itself proof that mitigating factors were disregarded
- Once the co‑accused's conviction was set aside, his sentence ceased to be a reliable comparator for parity analysis
- The sentencing judge properly identified and weighed the appellant's remorse, employment, youth and rehabilitative efforts
- A sentence close to the low end of the range for aggravated sexual assault can be appropriate even for an offender with a previously unblemished record
Court disposition
Appeal allowed in part
- Grant the appellant enhanced pre‑sentence custody credit of an additional 4.5 months
- Reduce the appellant's effective term of imprisonment from 75 months to 70.5 months
Source and reliance status
British Columbia Court of Appeal · 15 May 2020
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