R. v. Haufe, 2007 ONCA 515

CITATION: R. v. Haufe, 2007 ONCA 515

DATE: 20070706

DOCKET: C46939

COURT OF APPEAL FOR ONTARIO

DOHERTY, FELDMAN and MacPHERSON JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

OLIVER HAUFE

Applicant/Appellant

Christopher Hicks, for the applicant/appellant

Deborah Krick, for the Respondent

Heard and released orally: July 4, 2007

On appeal from the sentence imposed by Justice Bruce J. Frazer of the Ontario Court of Justice on January 24, 2007.

ENDORSEMENT

[1] The appellant, Oliver Haufe, seeks leave to appeal the sentence imposed by Justice B.J. Frazer following the appellant’s guilty plea for robbery. The sentence imposed was 18 months in custody (in addition to credit given for 48 days spent in pre-trial detention) followed by two years probation.

[2] The robbery occurred on December 29, 1995. It was a home robbery in which two intruders were surprised by the returning home owner. An altercation followed and the home owner was beaten, injured and taken to hospital. A fingerprint left at the scene led to the arrest of the appellant more than ten years later on April 1, 2006.

[3] The appellant’s principal ground of appeal is that the trial judge erred by rejecting the joint submission for sentence of counsel (namely, six months in custody) and imposing a sentence that tripled the proposed sentence (18 months).

[4] The sentencing judge did warn defence counsel that he was considering the imposition of a sentence higher than the joint submission. He also afforded defence counsel an opportunity to make further submissions after he issued his warning. However, in our view, the sentencing judge did not comply with the legal principles that apply to the rejection of a joint submission relating to sentence. In the leading case, R. v. Cerasuolo (2001), 2001 24172 (ON CA), 151 C.C.C. (3d) 445 at 447-8 (Ont. C.A.), Finlayson J.A. stated:

This court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute: e.g. R. v. Dorsey (1999), 1999 3759 (ON CA), 123 O.A.C. 342 at 345. This is a high threshold and is intended to foster confidence in an accused, who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge.

The Crown and the defence bar have cooperated in fostering an atmosphere where the parties are encouraged to discuss the issues in a criminal trial with a view to shortening the trial process. This includes bringing issues to a final resolution through plea bargaining. This laudable initiative cannot succeed unless the accused has some assurance that the trial judge will in most instances honour agreements entered into by the Crown. While we cannot overemphasize that these agreements are not to fetter the independent evaluation of the sentences proposed, there is no interference with the judicial independence of the sentencing judge in requiring him or her to explain in what way a particular joint submission is contrary to the public interest and would bring the adminis-tration of justice into disrepute. [Emphasis added.]

[5] With respect, the sentencing judge’s reasons in this case do not meet the requirements of Cerasuolo. The sentencing judge said nothing about the joint submission that counsel placed before him. This was particularly regrettable given that the Crown position on sentence had been the subject of a litigation conference in the Crown office which led to a formal letter to defence counsel setting out the Crown position. In these circumstances, the sentencing judge’s silence about the joint submission does not “explain in what way a particular joint submission is contrary to the public interest and would bring the administration of justice into disrepute”.

[6] Finally, in our view, it cannot be said that the sentence proposed in the joint submission (six months) was so clearly unreasonable as to make the imposition of an 18 month more or less self-evident. The sentencing judge himself identified several factors – the fact that the offence was committed in 1995, the guilty plea, and the appellant’s good conduct including employment, overcoming addiction, and non-commission of crimes in the two years before being sentenced for the 1995 robbery. In our view, these factors called out for an explanation of why the sentencing judge rejected the joint submission and imposed a custodial sentence three times higher than the joint submission.

[7] Leave to appeal sentence is granted, the appeal is allowed and a custodial sentence of six months is imposed. The other components of the sentence (credit for pre-trial custody and probation) are affirmed.

“Doherty J.A.”

“K. Feldman J.A.”

“J.C. MacPherson J.A.”