



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



R.
                v. Pretty,









2005 BCCA
            52




Date: 20050124




Docket: CA031927

Between:

Regina

Respondent



And

Jonathan
      Andrew Pretty

Appellant













Before:



The Honourable
            Madam Justice Ryan





The Honourable
            Mr. Justice Donald





The Honourable
            Mr. Justice Low




Oral Reasons for Judgment




B.H. Ralston



Counsel for the Appellant





S.J. Brown



Counsel for the Respondent





Place and
            Date:



Vancouver, British Columbia





24 January 2005







[1]

LOW
        J.A.:
This is a sentence appeal in a summary conviction
        matter, leave to appeal havening been given in chambers.  In Provincial
        Court the appellant pled guilty to one count of mischief under s. 430(4)
        of the
Criminal Code
.  Counsel for the Crown and counsel
        for the appellant made a joint submission for the imposition of a conditional
        discharge for a period of one year with certain conditions that included
        reporting to a probation officer and taking counselling as directed.  Without
        informing counsel of his concerns as to the adequacy of the proposed
        sentence, the sentencing judge gave reasons disagreeing with the proposal
        and suspended the passing of sentence under s. 731(1)(a) of the
Code
with
        a probation order containing substantially the same conditions as those
        proposed by counsel.  A Supreme Court judge dismissed an appeal of the
        sentence.

[2]

The
      appellant contends that the appeal judge erred in not finding error on
      the part of the sentencing judge in imposing a sentence greater than that
      proposed in the joint submission without advising counsel and without having
      a good reason for the departure.  It is clear from the cases that a sentencing
      judge is not bound by a joint recommendation from counsel as to the appropriate
      sentence.  The judge can reject the joint submission but ought to give
      reasons for doing so and not disregard it or overlook it.  The authorities
      in this Court state that it is preferable for the judge to make plain the
      reasons for the concern with the joint submission so that counsel can place
      any additional relevant material on the record for a possible appeal.  However,
      the fact that the judge does not, before giving reasons for sentence, state
      concerns he has with respect to the joint proposal does not mean that an
      appeal court must find the sentence to be unfit and reduce it to that proposed
      in the joint submission.

[3]

During
      the sentence proceedings in the present case, counsel made brief but comprehensive
      submissions.  Counsel for the Crown described the circumstances of the
      offence which I will summarize as follows.  The appellant, a young man
      of 18 years at the time, bore some animosity toward a neighbour because
      he claimed the neighbour had previously thrown rocks at his dog.  While
      the neighbour was sitting on the sundeck at the rear of her house, the
      appellant fired a BB gun at the house.  It is accepted that he was not
      aiming at her.  The pellet passed through the open sliding glass door leading
      to the sundeck and was found by a police officer on the floor of the living
      room where it had fallen after striking the wall.  The appellant readily
      admitted to the police what he had done and why he had done it.  The appellant
      has no prior criminal record.

[4]

In
      rejecting the joint submission, the sentencing judge said that his concern
      was that the victim was "at considerable risk of being struck and
      had she been struck the injury could have been significant".  I do
      not understand the appellant to be contending on appeal that the evidence
      did not support this conclusion.

[5]

The
      judge concluded his reasons for sentencing as follows:

[3]        I am told that Mr. Pretty is under the care of a psychiatrist,
      a child and adolescent psychiatrist, and is being treated for, amongst
      other things, a mixed anxiety disorder.  That is certainly something that
      I should take into consideration in assessing the seriousness of his acts.

[4]        What does concern me is the resort to the use of this handgun
      to resolve this dispute and, in essence, to vent his frustrations in a
      fashion that clearly put the complainant at risk.  There seem to be increasing
      examples of people resorting to the use of weapons to resolve their disputes.  This
      is a good example.

[5]        In my view a conditional discharge may well be in the interest
      of Mr. Pretty, but I remain unconvinced that there is any public interest
      component that meets any test for a discharge on these facts.  I decline
      to grant a conditional discharge.

[6]        I think the more appropriate way to deal with this matter
      would be to suspend the passing of sentence and place this offender on
      probation for a period of 12 months.  The terms and conditions will be
      essentially those that are suggested: He is to keep the peace and be of
      good behaviour; report for the purpose of counselling to a probation officer
      in person and thereafter as and when directed; provide his residential
      address and not change it without prior notice to the probation officer;
      he is not to contact the complainant or any members of her family -- I
      think their names were specified -- directly or indirectly for any purpose;
      he is not to attend within 100 metres of any place of residence, school,
      or employment of the family members of the complainant residence; he is
      to take such counselling as directed by the probation officer; he is not
      to possess any weapons as defined by the Criminal Code.  There will be
      an order forfeiting the BB gun.

[6]

The
      summary conviction appeal judge found no error on the part of the sentencing
      judge.  He said this:

[63]      I also conclude that the sentencing judge did give the joint
      submission proper consideration.  He referred to some of it in his sentencing
      judgment, being the psychiatric treatment Mr. Pretty was receiving.  While
      the sentencing judge did not recite the joint submission in more detail
      by noting Mr. Pretty's age and the fact he was a first offender and entered
      a timely plea of guilty, I accept the comments of Madam Justice Prowse
      in
R. v. Romanowski
[(2002), 174 B.C.A.C. 164] where she said:

The reasons of the
      sentencing judge are brief.  Although he did not specifically refer to
      the respective positions on sentence suggested by counsel, it is inconceivable
      that he would not have in mind information he was provided shortly before
      he imposed sentence.

[64]      The sentencing judge was concerned about the considerable risk
      to Mrs. Miller, who was sitting on the deck within the line of fire, even
      though he accepted that Mr. Pretty was not shooting at her.

[65]      He also expressed concern about the resort to the use of this
      handgun to resolve the dispute and to the fact that this was one example
      of an increasing number of examples of people resorting to the use of weapons
      to resolve their disputes.

[66]      In my view, he was entitled to consider these matters on sentencing.  Section
      718 of the
Criminal Code
sets out two of the purposes of sentencing
      to be to denounce unlawful conduct and to deter the offender and other
      persons from committing offences, and s. 718.1 requires that the sentence
      be proportionate to the gravity of the offence and the degree of responsibility
      of the offender.

[67]      The sentencing judge did not consider the joint submission
      to be a fit sentence as he did not consider it to be in the public interest.  He
      imposed a sentence that carried the same conditions of probation as would
      have a conditional discharge, with the only difference being the imposition
      of a criminal record through a suspended sentence.  I believe the sentencing
      judge considered this appropriate to deter both Mr. Pretty and the general
      public and to recognize the gravity of this offence.

[68]      I agree that a fit sentence was imposed.  It was a serious
      incident carrying considerable risk to Mrs. Miller and perhaps others in
      the house and deterrence of Mr. Pretty and other similarly minded persons
      who would use weapons to resolve disputes was an appropriate consideration
      in sentencing.

[7]

We
      are not told that there was any other information that the defence could
      have put before the sentencing judge had he signalled dissatisfaction with
      the joint submission.  This was not a complicated matter and, although
      the sentence proceeding did not take much time, it seems that counsel made
      complete submissions and it is difficult to conceive what else might have
      been said to attempt to support the sentence proposed or to add to the
      record for a possible appeal.  The judge was not bound by the submission,
      he found that he did not consider a conditional discharge to be "not
      contrary to the public interest" as required by s. 730(1) of the
Criminal
      Code
, and the circumstances, in my view, made that a reasonable
      conclusion.

[8]

I
      agree with the decision of the appeal judge and I would dismiss the appeal.

[9]

RYAN
        J.A.:
I agree.  In this Court leave was granted
        earlier by Mr. Justice Lowry on a question of law alone.  We have dealt
        with that question of law.  The issue with respect to fitness was dealt
        with in the Supreme Court by Mr. Justice Truscott.  He found that he
        could not say that the sentence was unfit.  The question of the fitness
        of sentence is not a question of law alone.  Fitness standing alone is
        not before us.  For the reasons given by my colleague, Mr. Justice Low,
        I too would dismiss this appeal.

[10]

DONALD
        J.A.:
I agree with what both of my colleagues have
        said.

[11]

RYAN
        J.A.:
The appeal is dismissed.

The Honourable
      Madam Justice Ryan

The Honourable Mr. Justice Low


