Court of Appeal
Decision Information
Summary: During sentencing of the accused, the crown had suggested a sentence of upwards of two years, while the defence submitted that a fit sentence would be a conditional sentence. Court of Appeal agreed with lower court judge that both extremes were inappropriate. That the pre-sentence report was very positive, the depth of remorse quite extraordinary, and that the accused had no criminal record made the crown's suggestion inappropriate. The defence's suggestion for a conditional sentence was futile in light of it not suggesting appropriate terms, conditions and facilities and programs, and the principles of proportionality and general deterrence and denunciation. Given that no other alternatives were put to the lower court judge, the Court of Appeal found no error in the judge's sentence, but was willing to reduce the incarceration time in lieu of adding other punitive and reformative measures.
Abstract: Memorandum of judgment
Decision: Appeal allowed. Incarceration sentence reduced from 1 year to 6 months followed by the originally ordered 18 months probation, and all other conditions originally ordered.
Appeal: Appellant appeals sentence alleging judge erred by making it too harsh in light of the accused's factors
Subjects: Criminal law - Sentencing - Considerations on sentencing - Characteristics of accused
Criminal law - Sentencing - Principles - General deterrence
Decision Content
R. v. Modeste, 2000 NWTCA 3
Date:
Docket:
IN THE COURT OF APPEAL FOR THE NORTHWEST TERRITORIES
YELLOWKNIFE CRIMINAL SITTINGS
HEARD JUNE 20, 2000
COUNSEL TRIAL JUDGE COURT
HER MAJESTY THE QUEEN Louise Charbonneau Bourassa J. C té J.A.
Hunt J.A.
Respondent Schuler J.A.
- and -
PAULINE MODESTE Kelly Payne
Appellant
APPEAL #CA 00856
MEMORANDUM OF JUDGMENT
THE COURT:
[1] The facts here are unusual, and we have never before seen a presentence report which is so positive. The offence was totally out of character, and the depths of remorse have been quite extraordinary. The civil effects upon the appellant have also been considerable, and they continue. She has no previous criminal record.
[2] The defence concentrated its efforts before the sentencing judge and before us upon a futile attempt to secure a conditional sentence. Futile, first because of the complete absence of any reasonable suggestions for terms and conditions, and of any useful information about facilities or programs which might be assessed, or other practical suggestions. The sentencing judge was quite correct to comment as he did upon the gap in the information given to him. Doubly futile, because the proportionality principle, considered in the light of this offence, and the need for general deterrence and denunciation, put a conditional sentence out of the question.
[3] The Crown sought a jail sentence upwards of two years and (as noted) the defence sought a token sentence involving no jail. (A conditional sentence with light pro forma conditions is a token sentence.) Therefore, the sentencing judge was not asked to consider anything more moderate, and whole alternatives were not even mentioned to him. It is now too late to implement some of them. We are going to allow the appeal, but for the reasons given, we imply no particular criticism of the sentencing judge, and indeed agree with many things which he said.
[4] We have decided to reduce the jail portion of the sentence from one year to six months, but to add other punitive and reformative measures. Both counsel expressly consented to our adding conditions to the 18 months probation imposed by the sentencing judge.
[5] The first additional condition is that the appellant will perform 200 hours of community service. Second, the presentence report mentions two kinds of counselling which the appellant had been taking, and makes a formal recommendation in that regard that does not seem to have been noticed by the sentencing judge. The appellant told her probation officer that she was willing to continue those programs. We add a condition that the appellant take such treatment or counselling, and submit to such diagnostic measures, as the probation officer may from time to time direct. We consider it very important that, as a matter of rehabilitation, she address the issues that seem to have led to this offence.
[6] We confirm the other conditions of probation which were imposed by the sentencing judge.
[7] The record does not reveal whether a proper professional diagnosis of the appellant s psychological and emotional problems has been conducted, and we are not in a position to add a positive condition in that regard. But we recommend to the appellant s probation officer that he or she consider this issue, as permitted by the added conditions.
[8] We grant the appellant leave to appeal, allow the appeal, and make the alterations described above.
[9] The table of contents of the appeal book is most perfunctory. It is the responsibility of counsel for the appellant to see that the appeal book is proper in form, and we ask her to point out the deficiency to the court reporters.
Dated at Yellowknife, NT,
this 23rd day of June 2000
C TÉ J.A.
HUNT J.A.
SCHULER J.A.
CA 00856
IN THE COURT OF APPEAL
OF THE NORTHWEST TERRITORIES
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
PAULINE MODESTE
Appellant
MEMORANDUM OF JUDGMENT