R. v. Bambrick

Date: 20111209 Docket: 10/134 Citation: R. v. Bambrick, 2011 NLCA 79 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: RODNEY BAMBRICK APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Green, C.J.N.L., Welsh, Rowe, White and Hoegg, JJ.A. Court Appealed From: Provincial Court of Newfoundland & Labrador, Judicial Centre at St. John’s Appeal Heard: November 7, 2011 Judgment Rendered: December 9, 2011 Reasons for Judgment by Welsh, J.A. Concurred in by Green, C.J.N.L., Rowe, White and Hoegg, JJ.A. Counsel for the Appellant: Peter Ralph, Q.C. Counsel for the Respondent: Sheldon Steeves Page: 2 Welsh, J.A.: [1] Mr. Bambrick pleaded guilty to and was convicted of three counts of breaching a recognizance that he had entered into pursuant to section 810.2 of the Criminal Code. He was sentenced to a term of imprisonment of two years. Mr. Bambrick has applied for leave to appeal, and, if granted, appeals the sentence imposed. BACKGROUND [2] The events leading to this appeal begin with a twenty-five month sentence of imprisonment imposed in September 2008 and served by Mr. Bambrick. The offences underlying that sentence are numerous: being unlawfully in a dwelling house (two years); counts of uttering threats (one one-month consecutive, two one-month concurrent sentences); theft under $5,000 (one month concurrent); two counts of assault (three months concurrent and one month concurrent); resisting a police officer (one month concurrent); mischief relating to and damaging property (one month concurrent); and failure to comply with an undertaking or recognizance (two one-month concurrent sentences). [3] Mr. Bambrick served the entire twenty-five month sentence. He was placed on parole three times, but returned to custody each time when he breached his parole conditions: the first time by refusing urinalysis, the second time by becoming involved in a criminal association while at a halfway house, and the third time by returning to the halfway house when he was intoxicated. Due to the length of his sentence, Mr. Bambrick was not eligible to be placed on probation upon his release from prison. [4] Upon returning to this Province after being released from prison, Mr. Bambrick was met by police officers who took him into custody and brought him before a judge of the provincial court for the purpose of determining whether an order should be made under section 810.2 of the Criminal Code. An order under this provision may be made where a provincial court judge is satisfied that there are reasonable grounds to fear that the individual will commit a serious personal injury offence. The individual is required to enter into a recognizance to keep the peace and be of good behaviour. Additional conditions may be included. Section 810.2 provides, in relevant parts: (1) Any person who fears on reasonable grounds that another person will commit a serious personal injury offence, as that expression is defined in section 752, may, with the consent of the Attorney General, lay an information before a Page: 3 provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named. … (3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period that does not exceed 12 months. … (4.1) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, … The definition of “serious personal injury offence” in section 752 provides, in relevant parts: (a) an indictable offence, …, involving … (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, and for which the offender may be sentenced to imprisonment for ten years or more, … Section 811 of the Code provides for an offence for failure to comply with a recognizance: A person bound by a recognizance under section … 810.2 who commits a breach of the recognizance is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years; … [5] The police officer involved in securing the section 810.2 recognizance in this case stated the reasons on which the police relied: … However, while in federal custody at both Springhill and Atlantic Institute in Nova Scotia and New Brunswick respectively, he also made additional comments in the presence of some professionals. One correctional officer he made a Page: 4 comment [to] that he was going to kill his ex once he got out on the street. He made threats about his ex to a psychology resident at Atlantic Institute while he was incarcerated and he also disclosed that although he knew he wasn’t [supposed] to have contact with her, he contacted the victim on two occasions while incarcerated by using three way calling. [6] Mr. Bambrick pleaded guilty to three counts of breaching the recognizance. Those pleas were accepted. He has not challenged the imposition of the recognizance, and he has not appealed the convictions. This is an appeal as to sentence only. The recognizance imposed eight conditions: 1. Keep the peace and be of good behaviour. 2. Reside at 28 Chafe Avenue or notify the RNC in writing of any change of residence 24 hours in advance of any change. 3. Do not conceal on your person any knife, and do not possess or be in any dwelling where there is storage of any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance and surrender any such items as well as licenses and registration certificate relating to them to the RNC at a time and place and manner as specified by the police within 24 hours of your release. 4. Do not possess or consume alcohol or enter any licensed drinking establishment. 5. Do not possess, consume or traffic in any illegal drug or substance. 6. Do not enter and remain away from the premises known as [specified address], St. John’s, and remain at least 200 meters from that premises. 7. Do not contact or communicate, directly or indirectly, in any manner with [specified person] and remain away from any place of residence, employment or schooling you know to be frequented by such person. 8. Take your medication as prescribed by a medical doctor. (Emphasis added.) [7] For purposes of assessing the guilty pleas, the Crown provided the following facts: … On the 27th day of October 2010, at 22:54 hours, the accused went to [a specified location which] was a convenience store called … where he purchased Page: 5 beer from that location. This incident was captured on the video surveillance system at the store. This store, coincidentally, Your Honour, is located in close proximity, less than 100 meters, to the home of an ex-victim of the accused who resides at [address specified]. On the 28th of October 2010, at 5:14, in the afternoon, Mr. Bambrick went to [the same convenience store] where he made another purchase of beer from that location. This incident is also captured on video and, of course, that still follows [sic] within the less than the 200 meters from the address of the ex-victim. On the 1st of November 2010, which was yesterday, at 3:00 o’clock in the afternoon, constable Fred Roche was parked in the area of [the specified residence] when he – he was down there wanting to speak to Mr. Bambrick, where he observed the accused leave a licensed drinking establishment known as … which is at [address] and is also in close proximity, less than 100 meters, again, to the [specified residence]. Constable Roche observed the accused walk northwest towards [the specified residence], at which time, Constable Roche exited his unmarked police unit and identified himself to Mr. Bambrick as a police officer. Mr. Bambrick is familiar with Constable Roche and recognized him. Constable Roche advised Mr. Bambrick that he was under arrest for breaching his Recognizance. A subsequent search of Mr. Bambrick incident to his arrest revealed that he had in his possession an unopened 50 milimeter [sic] mickey of Newfoundland Screech Rum; it was in the pocket of his coat. Mr. Bambrick was five minutes later passed over to the patrol officers and conveyed to the lock up. He was held overnight and brought in. He is now dealing with his case today. Those are the facts, Your Honour. [8] On November 2, 2010, Mr. Bambrick was convicted and sentenced to a term of imprisonment of two years on each of the three counts, to be served concurrently, followed by three years probation with conditions similar to those imposed in the section 810.2 recognizance. ISSUES [9] The issues are: (1) Have the requirements for leave to appeal been satisfied; (2) If so, should the sentences be varied because the trial judge erred: (a) in proceeding on the basis of a joint submission; or (b) in imposing maximum sentences for the offences; and (3) If so, what is a fit sentence in the circumstances? ANALYSIS Leave to Appeal Page: 6 [10] An appeal against sentence alone requires leave of the Court (section 675(1)(b) of the Criminal Code). The test is whether the appeal is “frivolous in the sense of having no arguable basis or sufficient merit” (Power v. R., 2011 NLCA 68, at paragraph 4). [11] In this case, there are questions as to the approach the trial judge adopted in considering the submissions on sentencing as a joint submission and in imposing the maximum sentence. It cannot be said that the appeal has no arguable basis. Accordingly, leave to appeal is granted. The Appeal Joint Submission [12] At the hearing, Mr. Bambrick indicated he wanted to have the proceedings concluded on that day. He was unrepresented and requested a two year sentence. He wanted “a federal sentence” so that he could get out of this Province. Crown counsel, knowing Mr. Bambrick’s position, “suggested” a two year sentence. [13] This situation cannot be characterized as a joint submission requiring deference by the sentencing judge as discussed in R. v. Oxford, 2010 NLCA 45, 299 Nfld. & P.E.I.R. 327. Generally, a joint submission will be the result of a “plea bargain” between counsel for the accused and the Crown. The accused would expect to receive a reduced sentence in exchange for agreeing to forego the right to a full trial. The quid pro quo central to a plea bargain, ordinarily resulting from negotiations between experienced and knowledgeable Crown and defence counsel, has been recognized as an appropriate procedure in the criminal law context. [14] However, the situation, as in this case, where the Crown simply agrees with or accepts the submission of a defendant regarding sentence, particularly where the defendant is unrepresented, cannot be characterized as a joint submission as contemplated in Oxford and to which judicial deference must be accorded. Accordingly, rather than proceeding on the assumption that he was dealing with a joint submission, the trial judge here should have determined an appropriate sentence in the ordinary way, taking into account the submissions of both Mr. Bambrick and the Crown and imposing a sentence consistent with the law and the facts of the case. Mr. Bambrick’s submission that he wanted out of this Province as the reason for requesting a “federal sentence” is not a proper basis on which to determine Page: 7 an appropriate sentence. It follows that the trial judge erred in law insofar as he considered the submissions of Crown counsel and Mr. Bambrick to constitute a joint submission as contemplated in Oxford. Maximum Sentences [15] The trial judge imposed the maximum sentence for each of the three counts. The principle that a maximum sentence will be imposed only rarely was recently reiterated by this Court in R. v. Murphy, 2011 NLCA 16, 304 Nfld. & P.E.I.R. 266: [37] … In R. v. Cheddesingh (D.M.), [2004] 1 S.C.R. 433; 319 N.R. 94; 186 O.A.C. 184, McLachlin, C.J.C., for the court, commented: “[1] … We agree with the appellant’s counsel that terms such as ‘stark horror’, ‘worst offence’ and ‘worst offender’ add nothing to the analysis [regarding imposition of a maximum sentence] and should be avoided. All relevant factors under the Criminal Code, R.S.C. 1985, c. C-46, must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely (see A. Manson, The Law of Sentencing (2001), at p. 106) and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case by case basis …”. [16] In the circumstances of this case, the trial judge erred in law in imposing maximum sentences for the breach of Mr. Bambrick’s recognizance. Although Mr. Bambrick appeared not to take seriously, as he should have, all the conditions imposed by the recognizance, the evidence does not support the conclusion that the breaches of the conditions were of sufficient gravity as to warrant a maximum sentence. A Fit Sentence [17] In summary, the trial judge erred in law by proceeding on the basis of a joint submission and by imposing the maximum sentence. It follows that the sentence must be varied with the imposition of a fit sentence as determined by this Court. Taking account of all the circumstances outlined above, Mr. Bambrick is sentenced to time served to the date of release of this decision. [18] In addition, upon his release from prison, Mr. Bambrick shall be placed on probation for a period of two years, with the following conditions: Page: 8 (1) Keep the peace and be of good behaviour; (2) Appear before the court when required to do so by the court; (3) Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; (4) Do not contact or communicate in any manner whether directly or indirectly with the person named in the indictment (the name to be inserted in the probation order); (5) Remain away from any place where the person named in the indictment (the name to be inserted in the probation order) resides, works or attends school, and in particular, remain at least 200 meters from any place where she resides; (6) Abstain from the possession or consumption of drugs or controlled substances except in accordance with a medical prescription; and (7) Abstain from owning, possessing or carrying any weapon, ammunition or explosive substance. SUMMARY AND DISPOSITION [19] Leave to appeal is granted. The appeal is allowed and the sentence varied. Mr. Bambrick is sentenced to time served to the date of release of this decision. In addition to the term of imprisonment, Mr. Bambrick is placed on probation for a period of two years subject to the conditions specified in paragraph 18, above. ____________________________ B. G. Welsh, J.A. I Concur: _________________________ J. D. Green, C.J.N.L. I Concur: _________________________ M. H. Rowe, J.A. Page: 9 I Concur: ___________________________ C. W. White, J.A. I Concur: ___________________________ L. R. Hoegg, J.A.