R. v. Carty, 2010 ONCA 237

CITATION: R. v. Carty, 2010 ONCA 237

DATE: 20100401

DOCKET: C49208

COURT OF APPEAL FOR ONTARIO

Doherty, Armstrong and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Carty

Appellant

Margaret Bojanowska and Matthew Gourlay, for the appellant

Jennifer Woollcombe, for the respondent

Heard: March 11, 2010

On appeal from the conviction entered by Justice Kathryn L. McKerlie of the Ontario Court of Justice on January 28, 2008, and the sentence imposed on March 3, 2008.

Doherty J.A.:

[1] The appellant pled guilty to several charges. He was sentenced to 12 months incarceration, in addition to five and one-half months credit for his pre-sentence custody. The appellant was also placed on probation for two years, received the mandatory minimum ten-year weapons prohibition, and was required to provide a DNA sample.

[2] The appellant filed a prisoner’s notice of appeal against the sentence imposed, expressly acknowledging his guilt on the charges to which he had pled guilty. Subsequently, with the assistance of duty counsel, the appellant requested an extension of time to appeal his conviction. On that application, the appellant argued that his guilty pleas were not valid and should be set aside. An extension of time was granted and the appeal became an appeal from both conviction and sentence.

[3] The validity of the guilty pleas was the only issue raised on the conviction appeal. The appellant filed an affidavit in support of his request that the pleas be set aside. The Crown filed the affidavit of the appellant’s trial counsel, Richard John Linley. Both the appellant and Mr. Linley were cross-examined on their affidavits. On the sentence appeal, the appellant contended that the trial judge erred in principle by imposing a sentence that gave undue weight to the factors of denunciation and general deterrence. The appellant requested that the sentence be varied to time served, the equivalent of nine months.

[4] At the conclusion of oral argument, the Court dismissed the conviction appeal, allowed the sentence appeal, and varied the sentence to time served. These are the reasons for those dispositions.

THE CONVICTION APPEAL

a) The Relevant Events

[5] My summary of the events relevant to the guilty pleas is taken from the trial record and Mr. Linley’s affidavit. Although Mr. Linley and the appellant disagree as to what was said on certain occasions, there is no significant dispute as to the chronology. In any event, I accept Mr. Linley’s recollection of the chronology of the various client meetings, as his recollection is supported by detailed notes.

[6] On September 29, 2007, the appellant and a bouncer became engaged in an altercation outside of a bar. The appellant was charged with one count of assault and one count of causing a disturbance. He was released by the officer in charge on his own undertaking, which included a condition that he abstain from the consumption of alcohol.

[7] On October 6, 2007, a week later, the appellant was found consuming alcohol in contravention of his undertaking. He was charged with breaching his undertaking, and released on his own recognizance. That recognizance contained a curfew and a drinking prohibition.

[8] The appellant retained Mr. Linley in October 2007. Mr. Linley met with the appellant on November 11, 2007, to discuss the charges. It was understood between Mr. Linley and the appellant that the appellant wanted to go to trial on the assault charge, claiming self-defence or the defence of his friend.

[9] On December 15, 2007, the appellant became involved in another melee. During this altercation, the appellant picked up a metal baseball bat and struck the victim over the head. The appellant claimed that he did so to help a friend who was being choked by the victim. The appellant was charged with aggravated assault, possession of a weapon for a purpose dangerous to the public peace and three counts of breaching his release orders. Not surprisingly, given that he was already on two release orders, the appellant was detained for a bail hearing.

[10] Mr. Linley appeared for the appellant in bail court on December 17, 2007. He explained to the appellant that the onus was now on him to show why he should be released, and that he would need someone who was prepared to act as a surety and allow the appellant to reside with him or her. Mr. Linley spoke to the appellant’s mother on December 18, but his parents were unwilling to act as sureties as they were leaving the country on vacation. Neither the appellant nor his parents suggested anyone else who might be prepared to act as the appellant’s “residential” surety. The bail hearing was adjourned on consent until January 2008.

[11] As of January 14, 2008, no potential sureties were available. Although the appellant’s parents had returned from their holidays, they were not prepared to act as sureties. The appellant had been in custody for about four weeks. This was the first time he had ever been in jail, and he was having problems coping with incarceration. According to the appellant, he was assaulted while in custody.

[12] On January 14, 2008, Mr. Linley received Crown disclosure relating to the December 15 charges. The disclosure included statements from various participants and witnesses of the relevant events. There was also a videotaped statement given by the appellant to the police after he had been cautioned and had spoken to counsel. In that statement, the appellant admitted that he had hit the victim over the head with a bat. He said he did so because that person was choking his friend.

[13] On January 23, 2008, Mr. Linley met with the appellant at the jail. He explained that in his opinion the appellant did not have any valid legal justification for hitting the victim. Mr. Linley told the appellant that the best course was to offer a plea of guilty to the included offence of assault causing bodily harm, as well as guilty pleas on the charges relating to the breach of the release orders. Mr. Linley explained to the appellant how guilty pleas could mitigate sentence. He also told the appellant that they could proceed to trial on the charges if that is what the appellant wanted. Mr. Linley’s contemporaneous notes of the meeting include the following: “I tell him he does not have to plea – he can go to trial and see what happens.”

[14] On January 24, 2008, Mr. Linley met with the Crown Attorney. The Crown suggested guilty pleas to some of the outstanding charges, including a guilty plea to a charge of assault causing bodily harm on the aggravated assault charge. The Crown proposed, however, to proceed by indictment on the assault causing bodily harm charge, meaning there would be a mandatory weapons prohibition of at least ten years included in the sentence. The Crown advised Mr. Linley that he would ask for a sentence in the range of 15 months in addition to any time spent in custody by the appellant prior to sentencing.

[15] The same day, Mr. Linley had a brief telephone conversation with the appellant. The appellant said he wanted to go to trial. There was no discussion about the merits of his case in this brief call.

[16] The appellant was due in court on January 28, 2008. On that day, prior to the court appearance, Mr. Linley met with the appellant. He again explained that he thought it was very unlikely that the appellant could be acquitted on the assault charge involving the baseball bat. Mr. Linley acknowledged that the appellant had difficulty accepting that he was criminally culpable, because in his mind he did not think he had done anything wrong in assisting his friend.

[17] Mr. Linley and the appellant offered different versions of what happened during their conversation prior to court on January 28, 2008. Mr. Linley contends that he explained the Crown’s proposed global resolution, advised of what he thought would happen if the appellant pleaded guilty to the charges offered by the Crown, made sure the appellant understood that the sentence was ultimately for the trial judge, and explained to the appellant that the sentence would include a mandatory weapons prohibition. Mr. Linley also reminded the appellant that it was his choice to plead guilty or not guilty.

[18] Mr. Linley did not encourage the appellant to go to trial as he thought it was in the appellant’s best interests to plead guilty to the charges on which the Crown was prepared to accept guilty pleas. Mr. Linley testified that the appellant struggled with the decision, but decided to plead guilty. A short time later, the appellant was before the trial judge.

[19] According to the appellant, he was “pushed to plead guilty” throughout the process after he was jailed on December 15, 2007. In his affidavit, he asserts that he was never told anything about the Crown’s position, but was assured that if he pled guilty he would get out of jail, if not immediately, then certainly within a month or two at most. According to the appellant, he was “completely shocked” when he was not released from custody after his guilty pleas. The appellant insists that he did not have a meaningful opportunity to consider his options.

b) Were the Pleas Valid?

[20] A guilty plea is valid if it is unequivocal, voluntary and informed. An informed guilty plea is one made with an appreciation of the nature of the allegations made, the legal effect of the guilty plea, and the consequences of that plea: see R. v. T.(R.) (1992), 1992 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519; s. 606(1.1) of the Criminal Code.

[21] Counsel for the appellant advances two arguments in support of her claim that the pleas were not valid. First, she contends that the transcript of the proceedings in which the guilty pleas were entered reveals that the pleas were neither voluntary, nor unequivocal. Second, counsel submits that if the transcript alone is insufficient to demonstrate the invalidity of the guilty pleas, the fresh evidence offered on appeal, particularly the appellant’s affidavit and cross-examination as well as the admissions made by trial counsel, demonstrates the invalidity of the pleas. I will consider each submission in turn, beginning with a review of the proceedings at which the appellant entered his guilty pleas.

i) The Proceedings in the Trial Court

[22] At the January 28, 2008 proceeding, the trial judge began by specifically asking the appellant whether he proposed to plead guilty to each of the five charges as she described them. The trial judge gave a brief description of each charge. Following each description, the appellant stated that it was his intention to plead guilty. The following exchange ensued:

THE COURT: Have you made those decisions voluntarily?

A. I …

THE COURT: By that I mean on your own without anyone pressuring you into entering a guilty plea.

A. Not entirely, Your Honour, but I think it is the best way.

THE COURT: It is really important that I be sure that this is a voluntary plea. Would you like to discuss that matter with your client in a little bit more detail?

Mr. Linley: I think it has been a difficult decision, but I think it is a decision he has made. [Emphasis added.]

[23] After this exchange, Mr. Linley and the appellant had a brief, private conversation in the courtroom. Mr. Linley then told the court: “I have addressed that again with him, Your Honour. The question could be put to him again if you wish.”

[24] The Court asked Mr. Linley if the appellant’s decision to plead guilty was voluntary. Mr. Linley replied that no pressure had been put on the appellant, but that it “is not an easy decision to make. There are many facts and circumstances”.

[25] The trial judge spoke directly to the appellant and asked whether the decision to plead guilty was being made voluntarily. The appellant replied “Yes, Your Honour”.

[26] The trial judge then put a series of questions to the appellant designed to ensure that the pleas were voluntary and informed. The appellant specifically acknowledged that he understood that by pleading guilty he was admitting that he had committed all of the offences and was waiving his right to a trial. The appellant specifically acknowledged that he had reviewed with his lawyer the facts that the Crown would be relying on in support of the charges. The appellant also told the judge that his counsel had explained the consequences of entering a guilty plea.

[27] The Court asked counsel whether the Crown had provided a position on sentence. Counsel for the appellant indicated that “a range” had been given. The trial judge then addressed the appellant directly as follows:

You should be aware that these offences - - obviously you are in custody, you understand that a jail sentence is a strong consideration on sentencing and you should be aware that if the Crown has given you a position on sentence, that is something I take into account just as I take your lawyer’s submissions into account. The sentence may be different than what the lawyer suggests and it may be longer than what - - the jail sentence may be longer than what is sought by the Crown. [Emphasis added.]

[28] The appellant specifically indicated that he understood what the trial judge had just explained to him, and the following exchange ensued:

THE COURT: So knowing that do you still wish to plead guilty?

A. Yes, Your Honour.

THE COURT: Do you have any questions for Mr. Linley before you do so?

A. No, Your Honour.

[29] The appellant then entered guilty pleas to the five charges on which the Crown had indicated it would proceed. The Crown read in facts in support of the charges. Mr. Linley added some mitigating detail in respect of the assaults. The matter was adjourned to March for sentencing.

[30] Mr. Linley spoke to the appellant on the phone in February. The appellant seemed confused and regretted his guilty plea. Mr. Linley also spoke to the appellant on March 2, 2008, the day before sentencing. The appellant was concerned about the potential effect of a weapons prohibition on his ability to join the Armed Forces.

[31] Sentencing proceeded on March 3, 2008. Mr. Linley urged the court to impose a sentence of time served, to be followed by probation. The Crown asked for a sentence of 18 to 24 months, with five and one-half months credit for pre-trial incarceration. Ultimately, the trial judge imposed a sentence of 12 months in addition to the pre-trial custody. She also placed the appellant on probation for two years and imposed the mandatory ten-year minimum weapons prohibition. The appellant was also ordered to provide a DNA sample.

[32] A review of the entirety of the trial proceedings reveals no basis upon which to question the validity of the appellant’s guilty pleas. The trial judge conducted a careful and comprehensive plea inquiry before accepting the guilty pleas. The facts as read in by the Crown fully supported those pleas. The trial judge addressed all of the matters referred to in s. 606(1.1) of the Criminal Code in clear and simple terms. She put questions directly to the appellant and received clear unequivocal responses from him. The trial judge gave the appellant every opportunity to speak up if he had concerns about his pleas. She offered him an opportunity to speak to his lawyer before proceeding with the pleas. By the time the pleas were entered, there was no reason to doubt their validity.

[33] Counsel for the appellant contends that the appellant’s indication to the trial judge that his plea was “not entirely” voluntary demonstrates that the plea was invalid. However, the appellant’s comment cannot be considered in isolation. After he made that remark, he spoke with his lawyer. He then gave several clear and unequivocal answers to questions put to him by the trial judge, and declined the opportunity to have any further discussions with counsel. Given the entirety of the record, this single utterance by the appellant raises no air of reality to his claim that his pleas were involuntary and coerced.

[34] In any event, even if one were to examine the exchange relied upon by counsel for the appellant in isolation, it does not demonstrate that the pleas were invalid. In that passage, the appellant asserts that his decision to plead guilty to some of the charges was “not entirely” free of outside pressures. He goes on to indicate that the guilty pleas are “the best way.” It is hardly surprising that an accused who is being held in custody, who is facing serious charges for which he has no defence and for which he will in all likelihood be incarcerated, will feel pressure at the time he is required to decide how to plead. His further assertion that “I think it is the best way” reflects his consideration of the alternatives and his decision as to which course of action was best.

[35] Nothing in the record of the proceedings at trial warrants the conclusion that the pleas were invalid. To the contrary, the record demonstrates that the pleas were voluntary, unequivocal and informed.

ii) The Fresh Evidence

[36] The appellant claims in his affidavit and cross-examination that he was coerced into pleading guilty by the circumstances and, to some extent, by the attitude of his trial lawyer. I have no difficulty accepting that the appellant was under pressure at the time. He was 21 years old, and in custody for the first time with no real prospect of release. He was facing a series of criminal charges, one of which was a serious allegation. His lawyer had informed him that he had no defence on that serious charge. These factors no doubt weighed heavily on the appellant’s mind when he was trying to decide what to do.

[37] However, the circumstances in which the appellant found himself were hardly unique, and are shared by many who must decide whether to plead guilty to criminal charges. That decision by its very nature must be made when individuals are under considerable pressure. That pressure is often the product of the grim realization that there is no viable alternative to a guilty plea, and that the consequences of a guilty plea will be immediate, serious and far-reaching. The pressures inherent in the nature and timing of the decision to plead guilty cannot in and of themselves invalidate a guilty plea on appeal. People are capable of deciding what is in their best interests even when they are under considerable pressure and none of the available options are attractive.

[38] Before turning to the appellant’s affidavit and cross-examination, I will address Mr. Linley’s testimony. Much of what he said is supported by contemporaneous notes. Further, Mr. Linley had nothing to gain by pressuring the appellant into pleading guilty.

[39] Mr. Linley acknowledges that his relationship with the appellant could have been better. He accepts that there were things he could have done differently to perhaps provide the appellant with more effective assistance. For example, it might have been better had Mr. Linley suggested an adjournment on January 28, to allow the appellant some time to decide whether he wanted to plead guilty to the charges suggested by the Crown. It might also have been better had Mr. Linley requested a brief adjournment after the appellant indicated to the trial judge that his pleas were “not entirely” pressure free.

[40] The shortcomings in Mr. Linley’s performance do not, however, undermine the essential validity of the guilty pleas. At best they demonstrate, with the benefit of hindsight, that Mr. Linley could have done more to afford the appellant a better opportunity to consider his options. That conclusion does not, however, mean the pleas should be set aside. The appellant must demonstrate the invalidity of the pleas, not merely that he could have been given a better opportunity to consider his position.

[41] Mr. Linley frankly acknowledged that he told the appellant that in his view the appellant did not have a viable defence to the charge involving the assault with the baseball bat. Mr. Linley also testified that the appellant had difficulty accepting this because in his mind it was appropriate for him to have come to the aid of his friend.

[42] Mr. Linley cannot be criticized for advising the appellant, even in strong terms, of his opinion as to the merits of any proposed defence. Mr. Linley owed his best advice to the appellant even if that advice was difficult for the appellant to accept. The appellant’s difficulty in accepting Mr. Linley’s opinion no doubt explains his vacillation prior to the plea and his second thoughts after the plea. That vacillation is not, however, a basis upon which to allow an accused to retract his guilty pleas on appeal. I would add that on the facts of this case, I agree with Mr. Linley’s opinion that the appellant had no defence on the merits to the charge of assault causing bodily harm.

[43] Mr. Linley’s candour during his cross-examination suggests to me a person who was doing his best to answer questions truthfully, rather than seeking to protect his own self-interest. For that reason and the others set out above, I find Mr. Linley’s evidence credible and reliable.

[44] I do not find the appellant to be a credible witness. After reading his cross-examination several times, I am compelled to agree with Crown counsel’s submission that the appellant was prepared to say almost anything that he thought would assist him in these proceedings. Much of his evidence is irreconcilable with what he said when he entered his guilty pleas. As his cross-examination proceeded, the appellant became more and more adamant that he had been told less and less. By the end of his cross-examination, the appellant professed virtually total ignorance of all matters relating to his guilty pleas.

[45] In his cross-examination, the appellant offered a myriad of explanations for the answers he gave to the trial judge during her extensive plea inquiry. The explanations changed, but they ultimately came down to the assertion that he did what he was told because he was assured he would get out of jail. As the appellant put it when asked why he would mislead the trial judge with his answers, “I chose that I wanted to get out of jail. That’s all I chose.”

[46] This explanation for answers given to the trial judge is incredible, particularly given that one of the questions made it clear that the matter of sentence would be decided by the trial judge and that “a jail sentence is a strong consideration on sentencing”.

[47] When pressed in cross-examination, the appellant repeatedly contradicted earlier answers he had given in his cross-examination. Three examples will suffice:

• In his affidavit, the appellant asserted that he spoke to Mr. Linley about laying charges against the bouncer arising out of the September assault. When cross-examined on this assertion, the appellant gave three different answers in the space of less than two pages of transcript.

• The appellant was cross-examined about whether he provided the name of his brother to Mr. Linley as a potential surety after the appellant’s arrest in December 2007. The appellant gave completely contradictory answers in the space of less than one page of transcript.

• The appellant was cross-examined about whether his mother attended at court and her willingness to act as a surety in December 2007. He gave different answers at different stages of his cross-examination.

[48] Not only did the appellant repeatedly vacillate during his cross-examination, many of his answers defy common sense. For example, the appellant contends that he was told by Mr. Linley, before going into court, that he would be pleading guilty to all charges. In fact, Mr. Linley and the Crown had already agreed that if the appellant pled guilty it would be to only some of the charges. It makes no sense that Mr. Linley would lead his client to believe that he was going to plead guilty to all of the charges when he had already arranged pleas to some of the charges. Furthermore, the appellant’s ready replies when the selected charges were put to him by the trial judge were entirely inconsistent with a person who believed he was pleading guilty to all of the charges.

[49] The appellant’s convoluted answers to questions about his understanding of the consequences of his guilty pleas afford another example of answers that defy common sense. The appellant denied that he understood that he would have a criminal record if he pled guilty. He also denied that he had any understanding of how a criminal record could affect his future. These answers reflect the attitude of one who is prepared to go to any length to disavow even a rudimentary understanding of the consequences of a guilty plea.

[50] In his cross-examination, the appellant added detail to the allegations he had set out in his affidavit. For example, he alleged for the first time that he was physically forced into the courtroom on the day he pled guilty, by a police officer who threatened him with additional charges if he did not enter the courtroom. This allegation, if true, would add substantial weight to the appellant’s claim that his pleas were not voluntary. One would have thought that if the allegation had any truth, it would have appeared in the appellant’s affidavit and not emerged for the first time well into his cross-examination. This embellishment has all the earmarks of an improvised fabrication made up to improve a story that was not weathering well under cross-examination.

[51] Perhaps most significantly, the overall tenor of the appellant’s cross-examination is that of a person who simply will not accept responsibility for his own conduct. In his cross-examination, the appellant could not even bring himself to admit his guilt on the charges involving the breaches of the various court orders. No one suggests he has any defence to those allegations. The appellant quite obviously has come to see himself as a victim in this narrative. That misperception has clearly skewed his recollection of the events and rendered his evidence unreliable.

[52] The fresh evidence put forward on appeal provides no basis upon which to set aside the guilty pleas.

[53] The conviction appeal is dismissed.

THE SENTENCE APPEAL

[54] The appellant pled guilty to assault, three counts of breaching release orders and one count of assault causing bodily harm. The assault charge arose out of an altercation that occurred outside a bar on September 29, 2007. One of the bar employees had grabbed the appellant to prevent him from assisting his friend who was engaged with another employee of the bar. The appellant responded by striking the employee in the chin area three times with his elbow. The employee released the appellant and he ran away. The appellant was not involved at the commencement of the altercation, but came upon the scene to find that his friend had “got into difficulties” with one of the bar employees.

[55] The three charges relating to breaches of release orders arose out of two separate incidents and involved the consumption of alcohol and the breach of curfew. On October 6, 2007, the police found the appellant at a dance. He appeared to have been drinking and admitted that he had consumed three beers. Under the terms of the undertaking on which he had been released following the September incident, the appellant was required to abstain from the consumption of alcohol. He was charged with breaching that undertaking and released. The other two breach charges arise out of the events of December 15, 2007. The appellant was consuming alcohol in contravention of two release orders, and he was out past the curfew imposed by the October release order.

[56] It is common ground that the assault committed on the bouncer in September was a minor one that, standing alone, would not have merited incarceration. The breaches of the release orders are a more serious matter. Those three charges taken together merited a short sharp jail term of approximately 30 days. Unfortunately for the appellant, he significantly upped the penal stakes when he committed the much more serious assault on December 15, 2007.

[57] In the early morning hours of December 15, 2007, the appellant and others were consuming alcohol at a party in a residence. A dispute occurred and the appellant was told to leave the residence. He left only to be followed by two men, one of whom was carrying a metal baseball bat. The appellant and the person carrying the bat had a confrontation some distance from the home. The appellant took the bat away from the other individual and threw it on the ground. Meanwhile, another fight had broken out. A man named Armstrong, one of the men who had followed the appellant out of the home, had a friend of the appellant on the ground and was choking him. The appellant picked up the baseball bat and struck Armstrong over the head with a downward blow. He then fled the scene with the bat.

[58] Armstrong was taken to the hospital, received seven stitches and was released. Photographs filed by the Crown show a large gash on Armstrong’s head. It does not appear that he suffered any significant long-term effects from the blow.

[59] The appellant turned 21 in December 2007. He had never been charged with a criminal offence before the altercation with the bouncer in late September 2007. While the appellant initially did not do well in school, he overcame his problems to graduate from high school and successfully complete an eight-month mechanics course at community college. Following that course, the appellant was employed as a mechanic, however, that job ended after three months. He was unemployed in the fall of 2007 with the exception of weekend employment with the military reserve.

[60] The appellant wanted a career in the Canadian Armed Forces. He had performed well with the reserves and had taken all of the steps necessary to apply to the regular Armed Forces. His convictions, and particularly the ten-year mandatory minimum weapons prohibition, all but ended his hopes of joining the Armed Forces.

[61] The appellant’s family has remained supportive throughout the process.

[62] The pre-sentence report was quite favourable, although some concern was expressed about the appellant’s alcohol consumption. The probation officer concluded:

The subject appears to have some difficulty with problem-solving and common sense. It would appear his actions of heavy drinking and negative associates prior to his enrolment in the Armed Forces were the result of poor judgment. His continued lack of insight while on an Undertaking is somewhat more perplexing. It appears with very clear direction and structure he can follow direction; however, he was not compliant with the Court ordered terms. These issues would likely prove continued difficulty for Mr. Carty in the long term, if he does not attempt to resolve them.

[63] The appellant had been in custody of 80 days at the time of sentencing. The trial judge gave him credit for 160 days – or five and one-half months. In imposing sentence, she referred to all of the relevant mitigating and aggravating circumstances. The trial judge indicated she was giving the appellant credit for his guilty pleas, the absence of any record, his age, and the lack of pre-meditation.

[64] The trial judge determined that the appellant should serve an additional 12 months resulting in an effective sentence of 17 ½ months. She assigned 12 months to the assault causing bodily harm charge and the remainder to the other four charges.

[65] Counsel for the appellant, recognizing the limited scope of appellate review of sentencing, argues that the trial judge erred in principle when she said, “The paramount sentencing principles have to be denunciation and deterrence for these blatant breaches of court orders and for this level of violence.”

[66] Counsel submits that given the appellant’s status as a first offender and his youth (20-21 at the time of the offences), the trial judge should not have treated denunciation and deterrence as the “paramount sentencing principles”. Counsel acknowledges that both principles had roles to play in determining the appropriate sentences, but argues that rehabilitation should also have played a significant role.

[67] Counsel submits that the trial judge’s almost exclusive reliance on denunciation and deterrence as the operative principles is evident from the length of the sentence she imposed. That sentence (17 ½ months) was only one-half of a month short of the range that the trial judge had described as appropriate in the circumstances, were it not for the appellant’s guilty plea, age and lack of prior record.

[68] Counsel submits that by discounting the sentence by less than a month, the trial judge gave the appellant’s rehabilitative prospects very little weight.

[69] I accept counsel’s submissions. While deterrence and denunciation were important given the nature of the offences, the rehabilitative prospects of the appellant were at least equally important. An appropriate sentence should have reflected a blending of all three factors.

[70] As the trial judge erred in principle, this court must determine the appropriate sentence. I begin by agreeing with the trial judge’s determination that as of the date she imposed sentence, a sentence of time served (the equivalent of five and one-half months) would not have been appropriate. The assault committed by the appellant with the baseball bat was a serious one. Fortunately, the victim did not suffer any significant long-term injuries, although as the trial judge noted, that consequence is more the product of good luck than anything else. However, without diminishing the seriousness of the assault, it must also be acknowledged that the appellant’s actions were spontaneous and involved a single blow delivered in circumstances that, while offering no justification or defence for his actions, do present an explanation with some mitigating value. The appellant believed that his friend was being choked by the victim.

[71] Bearing in mind the circumstances surrounding the offence of assault causing bodily harm, the appellant’s antecedents, his age, lack of criminal record, the serious impact of his convictions on his desire to join the Armed Forces, and his significant rehabilitative prospects, a sentence in the range of six to nine months would have been appropriate on the assault bodily harm charge. The three breaches of the release orders taken together merited a consecutive sentence of about 30 days. The assault charge arising out of the altercation with the bouncer is best addressed by a concurrent non-custodial term. In total, an appropriate sentence for the appellant’s offences would have been in the range of seven to ten months.

[72] The appellant served three and one-half months before he was released on bail pending appeal. Taking into account that incarceration plus the five and one-half months credited for pre-trial incarceration, the appellant has served an effective sentence of nine months. He has been on bail pending appeal for about 20 months without any incident. I see no value in re-incarcerating him now for a period of about 30 days. A sentence of time served is appropriate at this stage.

[73] The sentence appeal is allowed. The sentence on the assault bodily harm charge is varied to time served (nine months) to be followed by two years probation on the terms fixed by the trial judge. The mandatory minimum ten-year weapons prohibition made by the trial judge remains in effect, as does the DNA order.

[74] It would appear from my review of the informations that the sentences imposed on the other charges were all made concurrent to the assault causing bodily harm sentence, and that there is no need to vary those sentences to affect the immediate release of the appellant from custody. I do not propose to vary those sentences. To be clear, however, the intention of this disposition is that the appellant should not be required to serve any further period of incarceration on these charges.

RELEASED: “DD” “APR 01 2010”

“Doherty J.A.”

“I agree Armstrong J.A.”

“I agree David Watt J.A.”