$10,000.00 2001 SKCA 15 Docket: 145 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Gerwing Lane JJ.A. HER MAJESTY THE QUEEN and RANDOLPH DAVID BUSH COUNSEL: Mr. K.W. MacKay, Q.C. for the Crown The Respondent in Person DISPOSITION: On Appeal From: Provincial Court Appeal Heard: February 1, 2001 Appeal Allowed: February 1, 2001 (orally) Written Reasons: February 7, 2001 Reasons By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Cameron, and The Honourable Madam Justice Gerwing LANE J.A. (orally) [1] The Crown appeals a conditional sentence of two years less one-day imposed on the respondent after he pled guilty to the following charges:On or about the 5th day of February, A.D. 2000, at or near Saskatoon, Saskatchewan, did break and enter a place, to wit, a dwelling house situated at 190 Carleton Drive, Saskatoon, and did commit therein the indictable offence of theft, contrary to Section 348(1)(b) of the Criminal Code;On or about the 5th day of February, A.D. 2000, at or near Saskatoon, Saskatchewan, did have in his possession property to wit, jewellery the property of Marlene Brower of a value not exceeding five thousand dollars knowing it was obtained by the commission in Canada of an offence punishable by indictment contrary to Section 355(b) of the Criminal Code;On or about the 4th day of March, A.D. 2000, at or near Saskatoon, Saskatchewan, did being at large on his undertaking given to a justice or a judge and being bound to comply with a condition thereof, to wit, keep the peace and be of good behaviour fail without lawful excuse to comply with that condition, contrary to Section 145(3) of the Criminal Code;On or about the 4th day of March, A.D. 2000, at or near Saskatoon, Saskatchewan, did break and enter a certain place, to wit, a dwelling house situated at 65 Red River Road and did commit therein the indictable offence of theft, contrary to Section 348(1)(b) of the Criminal Code;On or about the 4th day of March, A.D. 2000, at or near Saskatoon, Saskatchewan, did break and enter a place, to wit, a dwelling house situated at 1202 Elliott Street and did commit therein the indictable offence of theft, contrary to Section 348(1)(b) of the Criminal Code;On or about the 17th day of June, A.D. 2000, at or near Saskatoon, Saskatchewan, did being at large on his undertaking given to a justice or a judge band being bound to comply with a condition thereof, to wit, keep the peace and be of good behaviour, fail without lawful excuse to comply with that condition, contrary to Section 145(3) of the Criminal Code. [2] The respondent is 38 years old with 49 prior convictions. The sentencing judge had this to say in response to the Crown’s proposal of sentence of three to four years: “... when one reviews the record it is easy to understand the position taken by the Crown which is for penitentiary sentence.” The judge noted the respondent’s alcohol problem, his three and one-half years of sobriety, and that the respondent did so well on probation he was released early at his own request in December of 1999. The judge noted the community support for the respondent, his education, and technical trade training. She further considered a positive pre-sentence report and the fact the respondent spent time on remand. She was of the view community disposition was likely to be more effective than incarceration at rehabilitating the respondent. [3] We are all of the view the Crown’s appeal must be allowed. A conditional sentence was not available in these circumstances. The sentencing judge acknowledged it was easy to understand the position taken by the Crown when the Crown asked for penitentiary sentence. The judge ignored the danger to the community presented by the respondent. The respondent had no sooner finished his parole when he began to commit the subject offences. As well, the judge, in our view, failed to consider the gravity of the offences, the need for deterrence, and above all of the protection of the public. [4] The circumstances and the respondent’s lengthy record require penitentiary term be imposed (see R. v. Prendenchuk[1]). However we have considered the time already spent on electronic monitoring and the post–sentence efforts of the respondent to change and simply remove the conditional provision imposed below. [1](2000) S.J. No. 644.
The Crown appealed a conditional sentence of 2 years less a day imposed after the respondent pled guilty to three break and enters of dwelling houses and theft and possession of stolen property in February and March as well as two breaches of undertakings in March and June 2000. HELD: The conditional provision was removed as time spent on electronic monitoring and post sentence efforts were considered. A conditional sentence was not available in the circumstances. The 38 year old had 49 prior convictions. The sentencing judge noted the accused's 3.5 years of sobriety, community support, education and technical trade training, and positive pre-sentence report but failed to consider the gravity of the offences, the need for deterrence, and above all, protection of the public. The respondent had no sooner finished parole than he began to commit these crimes.