R. v. Cromwell

R. v. Cromwell Court Court of Appeal Date 2005-11-03 Citation 2005 NSCA 137 Docket CAC 232797 Judge/Registrar/Adjudicator Cromwell, Thomas A. (Honourable Justice); Saunders, Jamie W. S. (Honourable Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - R. v. Cromwell - 2005 NSCA 137 - 2005-11-03 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: R. v. Cromwell, 2005 NSCA 137 Date: 20051103 Docket: CAC 232797 Registry: Halifax Between: Yvonne Mary Cromwell Appellant v. Her Majesty the Queen Respondent Judges: Roscoe, Bateman and Fichaud, JJ.A. Appeal Heard: September 21, 2005, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Bateman, J.A.; Roscoe and Fichaud, JJ.A. concurring. Counsel: Stanley W. MacDonald, for the appellant Peter P. Rosinski, for the respondent Reasons for judgment: [1] Judge D. William MacDonald of the Nova Scotia Provincial Court declined to accept a joint submission on sentence. This is an appeal by the offender, Yvonne Mary Cromwell, from the sentence imposed. PROCEDURAL HISTORY [2] Now 29 years old, Ms. Cromwell was charged in an Information sworn March 20, 2001 with the commission of five offences on October 2, 1999, on Highway #103, Tantallon, Nova Scotia: while her ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle and thereby caused bodily harm to Elisha Johnson, contrary to Section 255(2) of the Criminal Code of Canada; ... while her ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle and thereby caused bodily harm to Bruce Beuree, contrary to Section 255(2) of the Criminal Code of Canada; ... while her ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle and thereby caused bodily harm to Jason Hale, contrary to Section 255(2) of the Criminal Code of Canada; ... while her ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle and thereby caused bodily harm to Kimberley Hynes, contrary to Section 255(2) of the Criminal Code of Canada; ... did without reasonable excuse refuse to comply with a demand made to her by Mike Ryan, a peace officer, to accompany the said Mike Ryan for the purpose of enabling samples of the breath of the said Yvonne Cromwell to be taken pursuant to Section 254(3) of the Criminal Code, contrary to Section 254(5) of the Criminal Code of Canada. [3] Initially represented by Nova Scotia Legal Aid, Ms. Cromwell’s trial was set for October 29, 2001. The trial date was twice delayed, once at the defence’s request and the other on the Crown’s motion. The matter was to come on for hearing October 9, 2002. [4] In June 2002, Nova Scotia Legal Aid withdrew its representation of Ms. Cromwell. She failed to appear for the pre-trial conference on August 19, 2002. A warrant issued for her arrest. [5] Ms. Cromwell remained at large until arrested on the warrant on April 26, 2004. She was released on a Recognizance. Appearing in Court again on May 25, 2004, without counsel, the trial was set for October 5, 2004. By the time of the pre-trial conference on August 31, 2004, Ms. Cromwell was again represented by counsel (not her appellate counsel). [6] On the date set for trial, October 5, 2004, her counsel advised the Court that Ms. Cromwell would be pleading guilty to one charge of impaired driving causing bodily harm, incorporating all complainants. He further requested that an outstanding charge of breach of recognizance (arising out of circumstances which occurred on July 21, 2004) be brought before the Court, so that she could enter a guilty plea to that charge as well. [7] Ms. Cromwell pleaded guilty to each of the two charges. As is required by s. 606 (1.1) of the Criminal Code, before accepting the pleas, the judge advised Ms. Cromwell that he was not bound by any joint recommendation. She confirmed her wish that the pleas stand. After presenting the facts of each of the two offences, counsel made a joint recommendation for a conditional sentence of 18 months' duration for the impaired driving causing bodily harm charge and an additional one month for the breach of recognizance. The recommendation was, therefore, a 19 month conditional sentence to be followed by one year of probation and a two year driving prohibition pursuant to the Criminal Code of Canada, R.S.C. 1985, c. C-46. I will detail the proposed sentence conditions later in this judgment. [8] Judge MacDonald declined to accept the joint recommendation, sentencing Ms. Cromwell to four months imprisonment on the charge of impaired driving causing bodily harm and an additional month on the breach of Recognizance, for a total of five months imprisonment. That was to be followed by a one year period of probation as well as a two year driving prohibition under s.259 of the Criminal Code and a DNA Order. [9] Ms. Cromwell has been on bail pending the appeal. FACTS OF THE DRIVING OFFENCES [10] In order to provide the context of the offence for sentencing purposes it is necessary to review the circumstances in detail. Crown counsel gave the following account at the sentencing hearing: Dealing with the multi‑count ‑ or sorry, the offence date [sic] October 2nd, 1999, Your Honour ‑ dealing with those facts ‑ On October the 2nd, 1999, at 8:08 p.m., the Tantallon office of Halifax RCMP Detachment received a complaint of a motor vehicle accident on Highway #103 near Exit #5. Constable Allard of the RCMP Halifax Traffic Services was the first officer to arrive on the scene. All occupants of the two cars involved in the accident were out of the vehicles and numerous other vehicles had stopped at the scene. Constable Allard spoke with a male who identified himself as Bruce Beuree and he was bleeding from his forehead. Mr. Beuree informed Constable Allard that he was a passenger in one of the vehicles, a white Pontiac Sunfire, with Nova Scotia plate DAD 191. He further indicates that he had been hitchhiking with two females, later identified as Yvonne Mary Cromwell, as the driver and Alicia Johnson, as the front seat passenger, stopped to pick him up on the Bay Road, which is the old Highway #3. He was sitting in the back seat of the car and was driven through Lakeside and Timberlea on Highway #3 heading toward Tantallon. During the drive, Mr. Beuree noted Miss Cromwell to be speeding, doing 70 kilometres per hour in a posted 50 kilometre zone. As Miss Cromwell approached the interchange of the Bay Road and Highway #103, Mr. Beuree told her that he was only going to Exit #4. She responded by saying that she was late in picking up her friend at the Hubley Centre in Tantallon. She told him she would drop him off at Five Island Lake after picking up her friend. She continued down the ramp onto Highway #103. At this point, Mr. Beuree put on his seat belt, as the car was picking up speed. After a few minutes, Miss Cromwell told Mr. Beuree that she had been drinking prior to driving that night. Mr. Beuree noted the speed the car was being driven to be between 120 and 130 kilometres per hour in a posted zone of 100 kilometres. Miss Cromwell crossed the centre line from time to time while there was oncoming traffic and Mr. Beuree told her she should slow down before she killed them all and she replied by saying, "I can drive, I can drive." Mr. Beuree was finding it cold inside the vehicle as both the driver and passenger's windows were open. He removed his seatbelt to reach for his bag of belongings to get his jacket. As he was putting his coat on, he looked up to see an oncoming vehicle coming toward the back driver's side of the Sunfire, due to the fact that the Sunfire that he was in was sideways on the road and over the centre line of the highway. At this point he could hear tires squealing as the back end of the Sunfire was swaying side to side, then headed toward the ditch. Because of the commotion, Mr. Beuree told the police that he was not certain the oncoming vehicle had hit the Sunfire and when the white Sunfire came to rest in the ditch he could hear someone shouting, "Get out, get out." He climbed out of the car through the passenger side door window. He noted Yvonne Cromwell and Alicia Johnson were walking away from the car toward Exit #5. He yelled to them and asked them where they were going. The two females continued to walk and began hitchhiking. Mr. Beuree used his cell phone to report the accident and while he was still talking to the 911 operator the RCMP and paramedics arrived on the scene. Constable Allard relayed this information to other on duty members of the RMCP and left Mr. Beuree with bystanders to check on the passengers in the second vehicle. Jason Hale and Kimberly Hynes were travelling in a blue Pontiac Sunfire on Highway #103 inbound toward Halifax near Exit #5. They had just left Sobey's at Exit #5 and entered Highway #103, travelling at 100 kilometres per hour, when Mr. Hale, who was driving, noticed lights of an oncoming vehicle in the wrong lane. Mr. Hale tried to slow down and veered off onto the shoulder, but could not avoid the oncoming white Sunfire driven by Yvonne Cromwell, which appeared to lose control. The rear end of Miss Cromwell's car swung around into the lane of the blue Sunfire and hit the front of the Hale's vehicle. Mr. Hale, at this point, blacked out. He recalled holding the brake and he indicated in his statement that his legs felt as if they were being pushed up extremely hard and fast and felt as if they were broken. He heard Miss Hynes yelling at him to get out of the car. He could smell smoke and burning rubber. The air bags in the car were deployed. Mr. Hale could not open the driver' s door. He removed his seatbelt, reached up through the driver's window which was smashed out and pulled or rolled himself out of the car. He could feel broken glass and was covered in it and he started to go around to the back of the car to get Miss Hynes out, but heard her say she was out and okay. Mr. Hale was in pain and extremely disoriented and shaken up. As he approached the top of the embankment he took his jacket off and swung it around to wave down traffic. He noticed a car heading inbound towards Halifax come upon the accident scene, hit the debris, skid and nearly crash before coming to a stop about 300 feet away and within minutes many cars had stopped to offer assistance. Kimberly Hynes recalls seeing the white Sunfire swerve in toward her lane and heard a crashing impact immediately and felt their car spinning and going over the ditch and branches cracking. She felt herself being thrown around from side to side. She described excruciating pain in her rib cage. After the accident she reached over and felt Jason's face to see if he was okay and yelled at him several times to get out of the car. She remembers it being black, smoky and very dusty. She heard Jason get out of the car before her. She undid her seatbelt, reached down and unlocked her door, opened it and got out. She went up the embankment to flag down cars for help and she doubled over in pain and her knees were giving out. She saw headlights, but they looked like they were coming through dense fog, but she did notice a car drive through the debris on the highway and began fish tailing as it lost control and some of the debris flew up and hit her in the face and neck. There was lots of commotion. She could hear people talking to her. She had been wearing contact lenses which were no longer in her eyes and the paramedics arrived on the scene and began flushing out her eyes. Constable Mike Ryan and Constable Boyd Merrill were alerted to descriptions of Yvonne Cromwell and Alicia Johnson who had fled the scene. They were further alerted that two female hitchhikers matching the descriptions of the pair had been dropped at the Kentucky Fried Chicken in Hubley Centre Mall, located in Tantallon. Constables Ryan and Merrill attended at that location and noted the two females. A patron in the restaurant approached Constable Ryan and informed him that the two females had come in together. Constable Ryan approached the female who was behind the counter looking through a phone book and she later identified herself as Yvonne Cromwell. Constable Ryan detected a strong odour of liquor coming from Miss Cromwell, placed her [sic] arrest for impaired driving, escorted her outside to the police car where she was read her Charter rights, police warning and the breathalyzer demand. Constable Ryan was satisfied that she understood. Miss Cromwell refused to take the breathalyzer test, saying she had not been the individual driving the white Sunfire. Constable Merrill spoke to the second female who identified herself as Alicia Johnson and she provided a written statement naming Miss Cromwell as the driver of the white Sunfire who had left the scene. Miss Johnson admitted that both she and Miss Cromwell had consumed alcohol and had left the scene to locate a pay phone. Constable Merrill also spoke to a male that was hanging around the police car. He identified himself as Michael Brian McGraw and the registered owner of the white Sunfire and Mr. McGraw told Constable Merrill that he had lent his white Sunfire to Yvonne Cromwell earlier in the day. Constable Ryan again asked Miss Cromwell if she would take the breathalyzer test. She refused a second time, stating that she had already admitted to drinking and she was escorted to the Tantallon office of the RCMP which was located across the street or across Highway #213. She was given full opportunity to speak to legal counsel. She waived her rights to call legal counsel, but was permitted to make two personal phone calls at her request. Constable Allard, the investigating officer, arrived at the Tantallon office and spoke with Miss Cromwell. Miss Cromwell told Constable Allard she had been driving and that she was guilty. She admitted to having eight beers because it was her birthday. She further stated that she was not drunk and that the partying had only started and Constable Allard noted a strong smell of liquor from Miss Cromwell's breath, along with the usual indicia of impairment. Miss Cromwell showed no remorse for her actions and did not ask the status of Mr. Beuree, Mr. Hale and Miss Hynes. . . . Those are the facts the Crown relies upon, Your Honour. Miss Cromwell comes before the Court with one prior conviction, obstructing a peace officer, March 30, 2000. She received a fine of $300.00. (Emphasis added) [11] While there were no formal victim impact statements, the Crown attorney described the injuries suffered: Your Honour, Mr. Beuree was experiencing pain in his head, left upper side of his chest, left leg and left elbow. He was taken to the Q.E. II. He received eight stitches in his forehead and the chest pains continued and he was released from the hospital around midnight. Jason Hale experienced pain in his foot and leg. He found it difficult to walk because of the pain. He had bruising to his chest because of the air bag and cut cheek. His glasses were bent and scratched and he was transported to the hospital by family who arrived on the scene. He was examined at the hospital and it was determined he had suffered a broken toe on his left foot, a very bruised left foot, sore calf muscles, significant pain in his left leg, bruised ribs, stomach, a bump under his left eye, small cuts, a swollen face, a sore head and lower back pain. He spent seven to eight hours at the Q.E. II Emergency and he was prescribed pain medication. Kimberly Hynes was shaking uncontrollably and was extremely emotional and hysterical. She was doubled over in pain. She had glass all over her clothing and in her hair and eyes. She was experiencing extreme pain to her eyes as a result of the glass. She described it to be very scratchy beneath the eye lids and extreme muscle pain. She was transported to the hospital by ambulance. Initially she could not see and upon arriving at the hospital could only make out shapes of people around her. Light caused pain to the injuries to her. She suffered a rash on her face and chest from the air bag. She also suffered fluid build up and swelling in her elbow and was prescribed pain medication. Miss Johnson's medical records from the Q.E. II, where she attended two days after the motor accident, indicate she suffered sore ribs, a bruised right hip and pain to her left elbow, forearm and wrist. . . . Jason Hale, back some time ago, indicated in his statement ‑ attached to his statement, indicated that he could not complete his studies, he had trouble concentrating and studying and after the accident it was very hard to focus on his work and education. He had to attend physiotherapy. He could not play sports, such as his favourites, golf and ground hockey. There was an emotional impact. He had trouble driving, fearful of being on the road, trouble sleeping, nightmares about the accident, day dreaming about the accident and difficulty obtaining a doctor who accepted new patients. Kimberly Hynes, who is now married to Mr. Hale, at the time indicated that she believed she was going to die, she was completely disoriented because of the glass in her eyes, which caused her to become extremely panic stricken as she thought she was going to be blind. She had difficulty sleeping after the accident, suffered flashbacks and nightmares. The pain in her eyes and the elbow caused her to be uncomfortable. She could not relax. She works as a physiotherapy assistant at the Q.E. II Hospital and was concerned her injury to her elbow would not heal properly and possibly be detrimental to her career. Alicia Johnson, we have not received any response from her at all, Your Honour. [12] Mr. and Mrs. Hale were in court the day of the sentencing. Ms. Hale spoke about the lasting impact the accident had on them: KIMBERLY HALE Sure. I was going to ask that I could emphasize that the facts were taken from the Emergency Room that night and I was just wanting to add that since then that the biggest impact on our lives probably was ‑ had been the other injuries that developed the next few days after we left the Emergency Room and for instance, was my back and that is ‑ and my eyes and I had to have jaw surgery after that also from the whiplash from the air bag in my face. And ‑ and still now, I had to alter my job because of my back injury, so I can only work at certain parts of my job for certain amounts of time before I have to [sic] on light duties because my back can't physically keep up with the demands of my job. So it's just ‑ I just wanted to emphasize the impact that it's had on our life still and will continue even though we're not in active treatment anymore. We've been treated as much as we can and now we're just left with life long problems from it. So that's ‑ I think that's ‑ we just wanted to say that there was more even after the Emergency Room that came out and that's still affecting us now and it's affecting our ‑ our careers and my job. Thank you. THE JOINT SUBMISSION [13] In two recent decisions, R. v. MacIvor (2003), 215 N.S.R. (2d) 344; N.S.J. No.188 (Q.L.)(C.A.) and R. v. G.P. (2004), 229 N.S.R. (2d) 61; N.S.J. No. 496 (Q.L.)(C.A.), this Court has addressed the difficult issue of judges “jumping” a joint submission on sentence. Here we are concerned with a joint submission arising from a plea of guilty negotiated between the Crown and defence counsel. Counsel agree the judge erred in not advising counsel he was considering departing from the joint submission and providing them with an opportunity to present further submissions in support of the sentence. The sentencing decision here pre-dated the release of our reasons in R. v. G.P., where there was similar error. [14] At the sentencing hearing counsel provided minimal information to support the joint submission. The court was advised: The plea was entered in response to the joint recommendation; An essential police witness was not in the country which would necessitate a further adjournment at the Crown’s request; The Crown had taken into account the wishes of the victims; Ms. Cromwell had no related criminal record; Ms. Cromwell continues to struggle with a long-standing substance abuse problem but maintained she had been alcohol free for the two months prior to sentencing; Ms. Cromwell was five years older than when she committed the offence; She had had some employment but none continuing. [15] It was not suggested there would be problems in proving the case against Ms. Cromwell should the trial proceed. Without citing authority, counsel provided their opinion that the sentence was “within the range”. [16] After referring to the circumstances of the offence in some detail, the sentencing judge referred to the “significant” injuries suffered by Mr. and Mrs. Hale. He noted that the offence of impaired driving is an indictable one carrying a maximum penalty of ten years imprisonment. He acknowledged that the joint recommendation was presented by experienced counsel and that when a joint recommendation is presented “. . . there may be some aspects of the details of the background or matters of proof which are not completely canvassed before the Court . . .”. He was satisfied that the lengthy delay in bringing the matter to trial was a result of the combined effect of Ms. Cromwell attempting to retain counsel and her efforts to avoid the conclusion of the matter. The judge accepted the trial could not have proceeded as scheduled due to the absence of a police witness. [17] As stated above, the judge imposed a total sentence of five months imprisonment followed by a probation order. It is fair to infer from his comments the judge was not satisfied that the recommended sentence was within the range for this crime and this offender. He clearly found that it did not deal adequately with specific or general deterrence or denunciation nor did it adequately protect the public. RESOLUTION AGREEMENTS [18] In R. v. MacIvor, this Court approved with particular emphasis, the following comment by Fish, J.A. (as he then was), writing for the Court in R. v. Douglas (2002), 162 C.C.C. (3d) 37 (Que. C.A.): [51] ....the interests of justice are well served by the acceptance of a joint submission on sentence accompanied by a negotiated plea of guilty - - provided, of course, that the sentence jointly proposed falls within the acceptable range and the plea is warranted by the facts admitted. [19] There are many situations in which it is in the public interest for Crown and defence counsel to enter into negotiations which result in a guilty plea and a joint sentence recommendation. There may be uncertainties in evidence which induce both counsel to prefer a compromise. Avoidance of a trial may save substantial public expense and spare prosecution witnesses the trauma of testifying. A negotiated resolution, which shortens the time between the charging of the offence and disposition, protects the public from those who would re-offend while on pre-trial release and spares victims of crime the long ordeal of awaiting trial of the perpetrators. Offenders sometimes provide the police with critical information leading to the solution of other crimes. This can serve as a quid pro quo for a sentence somewhat reduced from what would otherwise be appropriate. Heavy criminal caseloads resulting in court backlogs can also be alleviated through consensual resolution, in the proper circumstances. Such resolutions are more likely to be achieved where it is probable that the sentencing judge will accept the recommendation of counsel. [20] Joint sentence submissions arising from a negotiated guilty plea are generally respected by the sentencing judge. Ultimately, however, the judge is the guardian of the public interest and must preserve the reputation of the administration of justice. Where the agreed resolution is contrary to the public interest, would bring the administration of justice into disrepute or is otherwise unreasonable the judge retains the discretion to reject the joint submission (R. v. Cerasuolo (2001), 151 C.C.C. (3d) 445 (Ont. C.A.); R. v. Dorsey (1999), 123 O.A.C. 342 (C.A.); R. v. C. (G.W.) (2000), 150 C.C.C.(3d) 513 (Alta. C.A.)). [21] A trial judge may decline to give effect to a joint recommendation, not simply because she would have imposed a more severe sanction, but where the sentence is clearly unreasonable and then, only if the judge is satisfied there are no other compelling circumstances justifying, as in the public interest, a departure from an otherwise fit sentence. FITNESS OF SENTENCE [22] In R. v. Shropshire [1995] 4 S.C.R. 227 an “unfit” sentence is described as one that is “clearly unreasonable” (at para. 46 per Iacobucci, J., for a unanimous Court), in other words, “clearly excessive or inadequate” (see also R. v. Muise (1995), 94 C.C.C. (3d) 119 (N.S.C.A.)). An unreasonable sentence is one falling outside the range (Shropshire at para. 50 and MacIvor, supra at para. 31). [23] In evaluating a joint submission the judge must determine the acceptable range of sentence for the offence before the court. A fit sentence is one that falls within that range. Fixing the range requires a consideration of the general sentencing principles and, for purposes of this case, those of conditional sentencing. [24] Where there is a joint submission, the judge considers the record before him – the admitted facts of the offence; information about the offender; the victim impact statements and submissions of counsel. It is counsels’ obligation to provide sufficient detail to justify the joint submission. (R. v. G.P., supra at para. 20 and R. v. Douglas, supra at para. 45). There are occasions when all relevant factors prompting the joint submission cannot be disclosed to the judge. The offender may have provided useful but confidential information about other crimes, disclosure of which would endanger his safety or compromise an on-going investigation. For that reason, even where a joint submission falls outside the range, it should be given serious consideration (McIvor, supra at para. 37). [25] Where there has been reversible error by the sentencing judge it falls to this Court to vary the sentence or dismiss the appeal (s. 687, Criminal Code). We have no power to remit. FITNESS OF THE PROPOSED SENTENCE [26] Counsel for Ms. Cromwell says this joint submission is within the range. He broadly defines the range of sentence, in these circumstances, as all sentences that might be imposed for the crime of impaired driving causing bodily harm. I disagree. In my opinion the range is not the minimum to maximum possibilities for the offence but is narrowed by the context of the offence committed and the circumstances of the offender (“ . . . sentences imposed upon similar offenders for similar offences committed in similar circumstances . . .” per MacEachern, C.J.B.C. in R. v. Mafi (2000), 142 C.C.C. (3d) 449 (C.A.)). The actual punishment may vary on a continuum taking into account aggravating and mitigating factors, the remedial focus required for the particular offender and the need to protect the public. This variation creates the range. [27] Drunk driving is a crime of distressing proportions. The Courts have consistently recognized that the carnage wrought by drunk drivers is unabating and causes significant social loss. (R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 (Ont. C.A.), per Rosenberg, J.A. at para. 22). [28] Drunk driving is an offence demanding strong sanctions. In R. v. MacLeod (2004). 222 N.S.R. (2d) 56; N.S.J. No. 58 (Q.L.)(C.A.), the Crown appealed an 18 month conditional sentence for impaired driving causing bodily harm and leaving the scene of an accident. Cromwell, J.A., writing for the Court, in allowing the appeal and substituting a sentence of 18 months imprisonment for the driving offence and six months consecutive for leaving the scene, said: [22] This and other courts have repeatedly said that denunciation and general deterrence are extremely weighty considerations in sentencing drunk driving and related offences: see for example, R. v. MacEachern (1990), 96 N.S.R. (2d) 68; 253 A.P.R. 68 (C.A.); R. v. Buffett (1989), 93 N.S.R. (2d) 324; 242 A.P.R. 324 (C.A.); R. v. Biancofiore (N.F.)(1997), 103 O.A.C. 292; 29 M.V.R. (3d) 90;119 C.C.C. (3d) 344; 10 C.R. (5th) 200 (C.A.); R. v. Dharamdeo (R.) (2000), 139 O.A.C. 137; 149 C.C.C. (3d) 489 (C.A.); R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man. R. (2d) 161; 212 W.A.C. 161, at para. 129. I accept the point that generally incarceration should be used with restraint where the justification is general deterrence. However, I also accept the view of the Ontario Court of Appeal in Biancofiore, shared by the Supreme Court of Canada in Proulx, that offences such as this are more likely to be influenced by a general deterrent effect. As was said in Biancofiore, "... [T]he sentence for these crimes must bring home to other like‑minded persons that drinking and driving offences will not be tolerated." (at para. 24) I would add that this is all the more important where, as here, the respondent's drunk driving caused serious physical injury to an innocent citizen and where, by fleeing the scene of the "accident", the offender has shown disregard for the victim's condition and disrespect for the law. [29] The sentence must provide a clear message to the public that drinking and driving is a crime, not simply an error in judgment. Those who would maim or kill by driving their vehicles while impaired are as harmful to public safety as are other violent offenders. The proliferation of this crime and the risk that it will be seen by society as less socially abhorrent than other crimes heightens the need for a sentence in which both general deterrence and denunciation are prominent features. Referring again to Biancofiore, supra, per Rosenberg, J.A.: [26] The drinking and driving offences occupy a unique position in the criminal law. Unlike most other criminal offences, such as crimes of violence or crimes against property, the stigma attached to the drinking and driving offences is often not matched by the objective gravity of these crimes. . . [27] . . . Section 718 directs that "the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society". As Ms. Gallin pointed out, it is too easy for otherwise law‑abiding people to view what happened in this case as an "accident", an unfortunate consequence of an error in judgment, rather than the commission of a criminal offence. Sentencing courts should be careful to ensure that they do not bolster that view of serious drinking and driving offences. [28] The pressing need to ensure that the drinking and driving offences not be destigmatized might not be met by a conditional sentence in this case. . . . [30] Denunciation as a component of sentencing is intended to communicate society’s collective condemnation of the offender’s conduct (R. v. M. (C.A.), [1996] 1 S.C.R. 500; S.C.J. No. 28 (Q.L.) (S.C.C.) per Lamer, C.J.C. at para 81). [31] In assessing the reasonableness of this joint recommendation, these general considerations in sentencing for drunk driving must be considered in conjunction with the principles of conditional sentencing. [32] Conditional sentences apply only to offenders who would otherwise be incarcerated. Thus, such a sentence should generally include punitive conditions that are restrictive of liberty. Sanctions such as house arrest or strict curfews should be the norm. There must be a reason for failing to impose punitive conditions (R. v. Proulx, [2000] 1 S.C.R. 61; S.C.J. No. 6 (Q.L.) per Lamer, C.J., writing for the Court, at paras. 36 and 37). [33] A conditional sentence is, by statutory definition, a sentence of imprisonment and capable of providing significant denunciation and deterrence. However, a conditional sentence, even with stringent conditions, will usually be more lenient than a jail term of equivalent duration. Incarceration will generally provide more denunciation than a conditional sentence of equivalent duration. This was recognized in Proulx, supra: 106 The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served. As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be. However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct. [34] Section 742.3(1) of the Code requires five conditions for all conditional sentences - the offender must keep the peace; appear before the court as required; report to a supervisor as directed; remain within the jurisdiction and notify the supervisor in advance of any change in name or address. The court may prescribe additional conditions (s.742.3(2)) which are to be guided by four general principles (Proulx, supra at para. 117): 117 . . . First, the conditions must ensure the safety of the community. Second, conditions must be tailored to fit the particular circumstances of the offender and the offence. The type of conditions imposed will be a function of the sentencing judge's creativity. However, conditions will prove fruitless if the offender is incapable of abiding by them, and will increase the probability that the offender will be incarcerated as a result of breaching them. Third, punitive conditions such as house arrest should be the norm, not the exception. Fourth, the conditions must be realistically enforceable. This requires a consideration of the available resources in the community in which the sentence is to be served. . . . (Emphasis added) [35] As proposed by counsel on the joint submission, Ms. Cromwell would be required to: · keep the peace and be of good behaviour; · appear before the Court when required to do so by the Court; · report to a supervisor within two working days after the making of the Conditional Sentence Order and thereafter as required by the supervisor and in a manner directed by the supervisor; · remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or the supervisor; · notify the Court or the supervisor in advance of any change of name or address, and promptly notify the Court or the supervisor of any change of employment or occupation; · attend for assessment, counselling and programs for alcohol substance abuse as may be directed by the supervisor; · participate in and cooperate with any assessment, counselling and programs for alcohol substance abuse, if directed to attend by the supervisor; · not possess, use or consume any alcoholic beverages; · have no direct or indirect contact and communication with Bruce Beuree, Elisha Johnson, Jason Hale and Kimberley Hynes; · perform 100 hours of community service work as arranged with the supervisor; · abide by a curfew from 11:00 p.m. to 6:00 a.m. seven days a week for the first nine months of the conditional sentence, with the following exceptions: ‑ when at a regularly scheduled appointment and travelling to and from that appointment by a direct route ‑ when dealing with a medical emergency involving herself or a member of her household · prove compliance with the curfew by presenting herself at the entrance of her residence should a peace officer attend there to check on her. [36] The conditions attached to the probation order were minimal, requiring Ms. Cromwell to report to her probation officer, keep the peace and complete any outstanding community service work or counselling requirements. [37] In evaluating the fitness of this conditional sentence it is necessary to scrutinize the proposed conditions in the context of the general principles from Proulx, supra. 1. Does this Sentence Adequately Protect the Community? [38] In Proulx, the Court, drawing on the judgments of the Alberta Court of Appeal in R. v. Brady (1998), 121 C.C.C. (3d) 504 and the Quebec Court of Appeal in R. v. Maheu, [1997] R.J.Q. 410, 116 C.C.C. (3d) 361 (C.A.), listed a number of factors which would guide a case by case assessment of the risk the offender poses to the community (at paras. 69 and 70): the risk of the offender re‑offending; the gravity of the damage that could ensue in the event of re‑offence; whether the offender has previously complied with court orders; whether the offender has a criminal record that suggests that [she/he] will not abide by the conditional sentence; the nature of the offence; the relevant circumstances of the offence, which can put in issue prior and subsequent incidents; the degree of participation of the accused; the relationship of the accused with the victim; the profile of the accused, that is, his [or her] occupation, lifestyle, criminal record, family situation, mental state; his [or her] conduct following the commission of the offence; the danger which the interim release of the accused represents for the community, notably that part of the community affected by the matter. [39] A principal purpose of sentencing is protection of the public. In passing sentence the judge must assess the risk to the community posed by the particular offender before the court. As a prerequisite to imposing a conditional sentence, the judge must be satisfied that the public will not be endangered should the offender serve her sentence in the community (Proulx, supra, para. 63). The judge must ask, can conditions be crafted which reduce the risk to the community to an acceptable level? Using the Brady/Maheu factors to consider the proposed sentence: (i) risk of re-offence/compliance with court orders: [40] This offence was fuelled by Ms. Cromwell’s consumption of alcohol. In the five years which had elapsed after charges were laid, Ms. Cromwell had apparently taken no organized steps to address her ongoing substance abuse. The judge was told at the sentencing that she had maintained her sobriety for the two months immediately preceding the hearing. Without conquering her substance abuse problem, the risk of Ms. Cromwell re-offending was high. [41] The fact that she had not appeared for her original trial date, had remained at large on a warrant for two years and had pleaded guilty to a breach of Recognizance did not suggest a likelihood that she would comply with the conditions of sentence, in particular, the requirement to refrain from consuming alcohol. The fact that she was to be subjected to a limited curfew between the hours of 11 p.m. and 6 a.m. does little to ensure the safety of the public. [42] The driving prohibition was directed at protecting the public. However, Ms. Cromwell’s long-standing substance abuse problem, her failure to appear for trial and her breach of a recognizance while on release raised a legitimate concern that she would not respect the prohibition. (ii) gravity of damage on re-offence/nature of the offence: [43] Should Ms. Cromwell re-offend the gravity of the damage that could ensue is obviously high. (iii) conduct following the commission of the offence: [44] The offence was a serious one with dramatic and lasting consequences for the victims. Neither at the time of the accident, nor since, had Ms. Cromwell indicated any concern for the victims. Her actions in fleeing the scene; delaying proceedings; and failing to appear for the first trial spoke not only of a continuing insensitivity to plight of the victims but a failure to appreciate the consequences of her actions. [45] Therefore, analysing the sentence in light of the above Brady/Maheu factors, I would conclude that this conditional sentence was not one which adequately ensured the safety of the community. That is fatal to the suitability of a conditional sentence for this offender. 2. Are the Conditions Tailored to Fit the Particular Circumstances of the Offender? [46] The condition requiring that Ms. Cromwell attend for a substance abuse assessment and counselling was intended to address Ms. Cromwell’s alcohol problem. Unexplained was why she had not commenced treatment over the five years preceding sentencing. No information was provided about her past attempts, if any, at treatment. The condition was, in my view, too general to foster confidence that it would appropriately and in a timely way address her substance abuse problem. [47] Nor did the imposition of the limited curfew between 11 p.m. and 6 a.m. specifically address Ms. Cromwell’s circumstances. Her substance abuse problem was not said to be limited to the late evening hours. The offence occurred at 8 p.m. 3. Did the Proposed Sentence Contain Punitive Conditions? [48] The first five conditions attached to the sentence were statutory requirements. Only two of the remaining terms could be viewed as either punitive or meaningfully restrictive of Ms. Cromwell’s liberty – the requirement that she abide by a curfew and the provision that she undertake 100 hours of community service. There was no explanation as to why the sentence did not require house arrest or substantially more restrictive conditions. Without punitive conditions, the sentence cannot be expected, in these circumstances, to deter either Ms. Cromwell or others from such conduct nor does the sentence express denunciation of the crime. 4. Are the conditions realistically enforceable? [49] Having found that the proposed conditions do not give effect to the first three principles from Proulx, most importantly in that the sentence does not adequately protect the public, it is unnecessary to consider their enforceability. The conditions are simply inadequate. THE REASONS FOR JUDGMENT [50] It is clear from the judge’s remarks that he found the proposed sentence lacked elements of general and specific deterrence, was not sufficiently denunciatory of the conduct; and, most importantly, did not adequately protect the public. In rejecting the joint recommendation the judge said: [11] I have some difficulty with the joint recommendation, frankly. This is not a case of simply impaired driving. It is a case where this is bodily harm that has resulted from the impairment. There is no question in my mind that Miss Cromwell's impairment is what caused her to lose control of the vehicle and to place her vehicle in the lane of oncoming traffic which resulted in the collision. I am troubled by that. I am also troubled by the fact that she left the scene of the accident and when confronted by police she made no inquiry about the condition of the passenger that was in the car or the people in the other vehicle. There is just an indication that when she was driving she did not pay attention to the concern of the hitchhiker and after the accident she was did not remain, did not assist, did not express concern. [12] The joint recommendation is for a conditional sentence, which is a sentence served in the community and there is a curfew imposed for a period of nine-months. That is a measure of restriction on Miss Cromwell’s liberty, there is no question about that. There is a request, as a condition, that she should abstain from the consumption of alcohol and participate in a substance abuse assessment, counselling and programs. I have some difficulty - I always have - with a condition to abstain from alcohol consumption for a long period of time for a person who is struggling with alcohol consumption. The reason is, is that I think it sets somebody up for a breach and the other charge that is before me is that she did not comply with a Recognizance condition to abstain from alcohol. Miss Cromwell has a problem with alcohol and it is going to create trouble in her life unless she gets a handle on it. [13] My obligation in dealing with sentence is to ensure that there is a measure of public protection. If I cannot have confidence of a compliance with a Court Order, that may not be an appropriate disposition. I can see the need for a substance abuse assessment and counselling programs because I think Miss Cromwell is going to need to deal with alcohol with help and it is not easy, but alcohol is only part of what is involved here. There is also the problem that it was alcohol combined with driving and that can be a deadly combination. I have said before that the most dangerous people to come before me in this Court are people who are driving when they have consumed alcohol and people who have alcohol problems and that likelihood of their doing so is real. In this case, that is exactly what happened. We have had two people, in particular, but three altogether, who were injured as a result of Miss Cromwell’s total disregard for the safety of people using a highway, which is a busy highway in this province and where there have been even more serious accidents. [14] The Court of Appeal has upheld the Parker case, that Mr. Arnold referred to - a conditional sentence in a case where there were actually deaths occurring. This situation is different. My own view, is that in dealing with alcohol related driving offences there has been a public recognition that this is a dangerous practice and there is a community rejection of alcohol and driving, a general viewpoint that over the years I think has taken hold, but it needs to be reinforced from time to time and people need to be protected from a person who would take significant risks. [15] I have been urged to make a Driving Prohibition Order and that goes some of the way of course, but in dealing with a serious motor vehicle collision, I think there needs to be a sentence which imposes a measure of deterrence, both for the offender and for the general community - a statement by the Court that this type of activity is unacceptable and a general denunciation. I do not think the proposed sentence meets that need in this case. (Emphasis added) [51] In the “Parker” case to which the judge referred, above, the driver was not charged with impaired driving. Alcohol was not a contributing factor (R. v. Parker (1997), 159 N.S.R. (2d) 166; N.S.J. No. 194 (N.S.C.A.)). [52] The above remarks illustrate that the judge was alive to the principles of sentencing generally, those related to sentences for impaired driving as well as those of conditional sentencing. I am not persuaded he erred in concluding the recommendation was an unfit sentence for this offence and this offender. As stated above, as a prerequisite to imposing a conditional sentence the judge must be satisfied the public will not be endangered by the offender serving the sentence in the community. Lamer, C.J.C., writing for the Court in Proulx, supra, said: 63 As a prerequisite to any conditional sentence, the sentencing judge must be satisfied that having the offender serve the sentence in the community would not endanger its safety: see Brady, supra, at para. 58; R. v. Maheu, [1997] R.J.Q. 410, 116 C.C.C. (3d) 361 (C.A.), at p. 368 C.C.C.; Gagnon, supra, at p. 2641; Pierce, supra, at p. 39; Ursel, supra, at pp. 284‑86 (per Ryan J.A.). If the sentencing judge is not satisfied that the safety of the community can be preserved, a conditional sentence must never be imposed. [Emphasis in original] [53] Ms. Cromwell has cited a number of cases in support of her submission that the joint submission was a fit sentence. In R. v. Martin (1996), 154 N.S.R. (2d) 268; N.S.J. No. 389 (Q.L.)(C.A.), this Court dismissed a Crown appeal from a three-year suspended sentence on two counts of impaired driving causing bodily harm. The impaired, unlicensed offender had driven his pickup truck on a highway and sheared a power pole, injuring his two passengers who were also impaired. In what were described by this Court as “lengthy and considered reasons”, the trial judge imposed a series of strict conditions including no consumption of alcohol, attendance at a twenty‑eight day detox program, counselling, reporting to the probation service and suspension of driving privileges. Clarke, C.J.N.S., writing for the Court, reviewed the particulars of the offence and the offender at para. 4: [4] ... Judge Kimball reviewed the aggravating factors which included an excessive consumption of alcohol, driving without a license and some earlier evidence of alcohol addiction. Against that he considered positive factors including the guilty pleas, genuine remorse, at least two traumatic events which had occurred in Mr. Martin's life, a dramatic transformation in his lifestyle since the accident reflected by his total abstention from alcohol, voluntary attendance at a detox program, successful completion of his GED examinations and compelling evidence of Mr. Martin's motivation to stop drinking alcohol. Judge Kimball was impressed by a positive pre-sentence report, letters of support for Mr. Martin filed with the Court by citizens in the community and especially the evidence of his employer, Mr. Cavanagh, who continued to permit Mr. Martin to retain his job, and also the evidence of Mr. Wendt, a local psychologist actively involved in correctional matters. Both Mr. Cavanagh and Mr. Wendt voluntarily offered to provide Mr. Martin with monitoring, assistance and counselling. [54] The sentencing judge’s stated focus was rehabilitation of the offender. This Court accepted: [7] Judge Kimball was genuinely satisfied and confident from that which was before the court that Mr. Martin can be rehabilitated. He gave detailed reasons for coming to that conclusion. ... [55] At Mr. Martin’s appeal hearing, the Court received an updated report from his employer who confirmed that the offender had successfully completed an alcohol rehabilitation program and had both positive behaviour and attitude at work. [56] I am not persuaded that the unique features in Martin that permitted a non-custodial disposition are present here. There is no indication that Ms. Cromwell has addressed her long-standing substance abuse, nor that she is remorseful, nor that she has employment. Indeed, Ms. Cromwell’s inability to address her addiction is confirmed by the fact that on February 9, 2005, she was sentenced for an impaired driving offence (s. 253(a) of the Criminal Code) which occurred on April 26, 2004. She received a fine and an eighteen month driving prohibition. [57] Ms. Cromwell further cites R. v. Banta (1996), 77 B.C.A.C. 28; B.C.J. No. 1284 (Q.L.) (B.C.C.A.). There, the offender, who received a suspended sentence with probation, appealed the condition that he perform 1500 hours of community services. From the limited summary of the case provided, it is impossible to discern the circumstances of the offence or the offender. It suffices to say the sentence was not appealed by the Crown. The Court of Appeal dealt only with the narrow issue on the amount of community service and was not required to comment otherwise upon the fitness of the sentence. That case does not, in my opinion, serve to bolster Ms. Cromwell’s submission that the joint recommendation here was a fit sentence. [58] In R. v. Gomes (2003), 175 C.C.C. (3d) 125; A.J. No. 567 (Q.L.)(Alta. C.A.), cited by Ms. Cromwell, the offender received a conditional sentence for impaired driving causing bodily harm. The issue on appeal was not the fitness of sentence but whether the sentencing judge had erred in ruling that the minimum penalties under s.255(1)(a) of the Criminal Code did not apply to the offence. Like Banta, this is not an appellate case endorsing the fitness of a conditional sentence for impaired driving causing bodily harm. [59] In R. v. Mischaud (2000), 190 Nfld. & P.E.I.R. 206; N.J. No. 205 (Q.L.)(Nfld. C.A.) in a brief endorsement, the Court declined to interfere with a 16-month conditional sentence followed by 18 months probation and a 34-month driving prohibition for impaired driving causing bodily harm. From the report we know only that the offender was 20 years old at the time of sentencing. The Court described the conditions as “quite restrictive”. [60] In R. v. Scraire (1998), 132 C.C.C. (3d) 210 (Que. C.A.) the offender had pleaded guilty to two counts, one of impaired driving causing death and one causing bodily harm. The offender was sentenced to a total of 15 months imprisonment followed by two years’ probation. The issue on appeal was whether the judge had misdirected himself by holding that the need for denunciation and general deterrence in impaired driving offences precluded him from imposing a conditional sentence. The majority thought he had so misdirected himself, in dissent, Fish, J.A. (as he then was), thought not. Robert, J.A. (as he then was), for himself and Deschamps, J.A. (as she then was) found that the “trial judge [wrongly] concluded that in respect of impaired driving causing death, the factors of deterrence and denunciation prevented the sentence from being served in the community”. Accordingly, he did not consider the whole of the circumstances surrounding commission of the offence and determine whether it would be proper to impose a conditional sentence. The majority of the court of appeal conducted that review. There were, Robert, J.A. noted, several mitigating factors including the youth of the offender, no prior record, that it was a unique albeit tragic accident, the offender had difficulty dealing with his parents’ recent separation, he was not a hardened criminal, did not have a substance abuse problem and no indication of delinquency, the probability of recidivism was minimal, the experience had matured the offender, he pleaded guilty at the first opportunity and was greatly disturbed by the accident and remorseful. Robert, J.A. said at p. 217; In addition, it must be added, and this factor is very important, that after a rather mediocre performance in his final year of secondary school ("secondaire V"), he pulled himself together and went on to college ("C.E.G.E.P."). We were informed at the hearing that he completed his college studies all the while working part time in a restaurant to earn a living. In the case at bar, it is difficult to see how imprisonment, which would necessarily force the appellant to suspend his studies and to leave his job, would be of any use to him or to society in general. [61] I am not persuaded that the circumstances of the offender in Scraire are comparable to Ms. Cromwell. [62] Finally, Ms. Cromwell cites another brief endorsement by the Ontario Court of Appeal (R. v. Mould, [2000] O.J. No. 3040 (Q.L.)(Ont. C.A.)) wherein a Crown appeal from a conditional sentence for this offence was dismissed. The offender was described by the sentencing judge as a young man of great accomplishment and strong character who had lived an exemplary life up to the date of the offence. He was drinking with his two friends who were the passengers in his vehicle. One was killed, the other injured. The parents of the victims asked that the offender not be given jail time. He was genuinely remorseful and undertook counselling for his inability to concentrate, flashbacks and sleeplessness attributed to the accident. The trial judge (decision reported at [1999] O.J. No. 5202 (Q.L.) (Ont. S. Ct. Jus.) accepted that his remorse was genuine and deep and that the accident was a tragedy he would always carry. The trial judge said: ¶ 25 The mitigating factors are as follows: ¶ 26 First, the victims in the accident were close friends of the accused. As previously indicated, his remorse is sincere and deeply felt. Second, Mr. Mould has neither a criminal record nor a driving record. Third, his pre‑sentence report is a good one. Mr. Mould is an individual of enormous promise. He has an excellent reputation in the opinion of a wide variety of people in his community. One aspect of the pre‑sentence report is particularly noteworthy. Miss Black says it was uncharacteristic of Mr. Mould to drink and drive and cites specific examples supporting her opinion. Fourth, the family of the deceased does not want to see the accused in prison. Indeed, as the Hackett family letter says, "our grief would be compounded if this young man were given a prison term." . . . ¶ 29 Having weighed all of the aggravating and mitigating factors, there are two predominant reasons why I am permitting Mr. Mould to serve his sentence in the community. The first relates to the desire of the Mr. Hackett's widow, his parents, his four sisters and brother, to see Mr. Mould punished in a manner other than jail. It is the intent of Parliament that victims participate in the sentencing process and their views taken into account. I wish to emphasize, however, it is the duty of a sentencing judge to sentence an offender in accordance with legal principles and not solely on the views of the victims. However, in this case, the notion of compounding the Hackett family grief, as stated in their letter to this court, is an important consideration. I hark back to the words in Gladue: "The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime." While not in any diminishing the community stake in this case, those most closely affected by this crime are unanimous that their grief would be furthered by the imprisonment of Mr. Mould. ¶ 30 Secondly, Mr. Mould enjoys an excellent reputation in his community. If anyone is entitled to draw upon an exemplary life as a reason for allowing such an offender to serve his sentence in the community, it is Mr. Mould. It is my settled view that this case is an exceptional one not requiring the imposition of a jail term. [63] The common thread among these cases is that the conditional sentence can be a fit disposition for offenders with an exemplary background, where the offence is uncharacteristic and where there is virtually no continuing risk that the offender will re-offend. These cases do not persuade me that this conditional sentence, containing the minimal conditions it did, was within the range for this offence and this offender. It was open to counsel to craft a set of conditions which were substantially more punitive, rehabilitative and restrictive, thus addressing the need for deterrence, denunciation and protection of the community. They chose not to do so nor did they satisfy the judge that the absence of those features was warranted here. [64] However, as was noted by this Court in McIvor, a sentence falling outside the range still warrants some consideration from the perspective of whether its acceptance by the judge is still in the public interest. On the appeal, counsel for Ms. Cromwell provided us with additional information not made known to the sentencing judge. He suggests there were problems of proof in the Crown’s case: due to the passage of time witnesses’ memories may have faded; there was potential for a delay argument by Ms. Cromwell; the right to counsel caution provided in 1999 may not have complied with the current law; and there might have been an issue as to whether Ms. Cromwell’s inculpatory statement to Constable Allard was admissible. Counsel adds that the victims were anxious to have the matter at an end and the absence of a key witness would necessitate a further adjournment. This collection of factors he submits, justifies the joint submission. I disagree. I am not persuaded this additional information speaks of material problems of proof in the Crown’s case nor otherwise demonstrates that the judge erred in concluding the proposed sentence was not in the public interest. Neither the additional information nor the authorities cited persuade me that the joint submission was reasonable. Even had the judge been provided with this information I am not satisfied he would have accepted the recommended sentence as fit. DISPOSITION [65] In summary, the judge was aware that he should not lightly depart from the joint submission. He gave the recommendation serious consideration and provided sound reasons for rejecting it. While the judge erred in not providing counsel with an opportunity to make further submissions in support of the sentence, I am not persuaded that the additional information would have altered the result. [66] The sentence of five months incarceration followed by probation imposed by the trial judge is at the very low end of a reasonable range for this offence. In my view, it provides a meaningful reduction of sentence in recognition of Ms. Cromwell’s guilty plea. There were several aggravating factors here which would call for a sentence in the higher end of the range, absent the plea bargain. [67] Having found that the judge’s rejection of the joint submission was warranted in the circumstances and that the sentence imposed by him is not clearly unreasonable or unfit, I see no basis to interfere (R. v. Stone, [1999] 2 S.C.R. 290). It is not for this Court to re-craft the conditions of sentence proposed by counsel on the joint submission but to consider the fitness of the sentence actually imposed. I would grant leave but dismiss the appeal. [68] I encourage counsel who would put forward a joint submission to provide the judge with as much detail as possible supporting the recommendation. If there are genuine problems of proof in the Crown’s case or other factors which lend support to the joint submission being in the public interest, such should be made known to the judge insofar as is possible. Case law as to range should be cited as well. Bateman, J.A. Concurred in: Roscoe, J.A. Fichaud, J.A.