R. v. Priest (J.) (1996), 93 O.A.C. 163 (CA)
MLB headnote and full text
Her Majesty The Queen (respondent) v. Jason Priest (appellant)
(C25387)
Indexed As: R. v. Priest (J.)
Ontario Court of Appeal
Laskin, Rosenberg and Moldaver, JJ.A.
September 30, 1996.
Summary:
The 19 year old accused first offender pleaded guilty to break, enter and theft and was sentenced to one year’s imprisonment. The accused appealed the sentence.
The Ontario Court of Appeal allowed the appeal and reduced the sentence to time served (five weeks) plus one year’s probation.
Criminal Law – Topic 5812
Sentencing – Sentencing procedure and rights of the accused – Use of presentence reports – The Ontario Court of Appeal stated that “before imposing a sentence of imprisonment upon a first offender, the trial judge should have either a presentence report or some very clear statement with respect to the accused’s background and circumstances. … That principle has particular application in the case of a youthful offender … This requirement of a presentence report or statement about the offender is not a mere formality. … the trial judge has a duty to consider whether any disposition other than imprisonment would be appropriate. Without some understanding of the accused’s background, the trial judge cannot possibly make that determination.” – See paragraphs 15 to 16.
Criminal Law – Topic 5830
Sentencing – Considerations on imposing sentence – Step or jump principle – The Ontario Court of Appeal stated that “it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. … emphasis on individual deterrence rather than general deterrence was particularly applicable in the case of a youthful first offender.” – See paragraphs 23 to 24.
Criminal Law – Topic 5833
Sentencing – Considerations on imposing sentence – Deterrence – [See
Criminal Law – Topic 5851
].
Criminal Law – Topic 5836
Sentencing – Considerations on imposing sentence – Deterrence – Prevalence of similar crime – The Ontario Court of Appeal stated that “prevalence of a particular crime in a community can never be more than one factor to be taken into account” – The court agreed that “it is appropriate to consider whether in that particular community, at that particular time, there appears to be an unusual amount of that type of crime, which therefore calls for a sentence which will reflect a degree of deterrence to others. At the same time, that situation can never be more than one of the factors which is to be taken into account, the paramount question of course always being: what should this offender receive for this offence, committed in the circumstances under which it was committed?” – See paragraph 12.
Criminal Law – Topic 5841
Sentencing – Considerations on imposing sentence – Age of accused – [See
Criminal Law – Topic 5830
].
Criminal Law – Topic 5848.8
Sentencing – Considerations on imposing sentence – First offence – The Ontario Court of Appeal stated that “the primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation. … in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence. … It should be clear from the record of the proceedings, preferably in the trial judge’s reasons, why the circumstances of this particular case require that this first offender must receive a sentence of imprisonment.” – See paragraphs 17 to 20.
Criminal Law – Topic 5851
Sentence – Break and enter – The 19 year old accused first offender pleaded guilty to break, enter and theft – Broke into convenience store and stole $2,700 worth of Nintendo games and accessories – All property recovered – Accused admitted theft and pleaded guilty – No violence, vandalism or breach of trust – Accused unrepresented by counsel at sentencing – Only information obtained by sentencing judge was accused’s age, that he lived alone, was unmarried and had no dependents – No information as to background, family, roots in community, education or work history – Crown recommended sentence of 30-60 days – The trial judge, taking judicial notice of the prevalence of break-ins in the community, stressed general deterrence in sentencing the accused to one year’s imprisonment – The Ontario Court of Appeal reduced the sentence to time served (five weeks) plus one year’s probation – The trial judge did not follow clear sentencing guidelines – The trial judge, inter alia, overemphasized general deterrence to the exclusion of all other factors, had insufficient information by way of a presentence report or statement respecting the accused’s background, etc., and imposed a wholly disproportionate sentence.
Cases Noticed:
R. v. Sears (1978), 39 C.C.C.(2d) 199 (C.A.), refd to. [para. 12].
R. v. Rohr (1978), 44 C.C.C.(2d) 353 (Ont. C.A.), refd to. [para. 13].
R. v. McKimm, [1970] 1 C.C.C. 340 (Ont. C.A.), refd to. [para. 13].
R. v. Bates (1977), 32 C.C.C.(2d) 493 (Ont. C.A.), refd to. [para. 15].
R. v. Stein (1974), 15 C.C.C.(2d) 376 (Ont. C.A.), refd to. [para. 17].
R. v. Salituro (1990), 38 O.A.C. 241; 56 C.C.C.(3d) 350 (C.A.), refd to. [para. 19].
R. v. Osbourne (C.A.) (1994), 75 O.A.C. 315; 94 C.C.C.(3d) 435 (C.A.), refd to. [para. 21].
R. v. Demeter (1976), 32 C.C.C.(2d) 379 (Ont. C.A.), refd to. [para. 22].
R. v. Vandale (1974), 21 C.C.C.(2d) 250 (C.A.), refd to. [para. 23].
R. v. Curran (1973), 57 Cr. App. R. 945 (C.A.), refd to. [para. 23].
R. v. C.A.M. (1996), 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327 (S.C.C.), refd to. [para. 26].
R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193, refd to. [para. 27].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 718, sect. 718.2 [para. 18].
Authors and Works Noticed:
Canada, Minister of Justice, Sentencing (1984), p. 37 [para. 26, footnote 1].
Counsel:
Nicholas A. Xynnis, for the appellant;
Susan M. Chapman, for the Crown, respondent.
This appeal was heard on August 30, 1996, before Laskin, Rosenberg and Moldaver, JJ.A., of the Ontario Court of Appeal.
The judgment of the Court of Appeal was delivered by Rosenberg, J.A., and released on September 30, 1996.
