In R. v. Arganda, the Manitoba Court of Appeal reduced a sentence that the Court found unfit at the time of its imposition due to facts not known to the sentencing judge, and held that the sentence could not nonetheless be upheld given the post-sentence criminal conduct of the accused.
The appellant received a two-year jail sentence in 2007 for his involvement in a fraudulent cheque-writing/cashing scheme. In April, 2010, he was given a fine of $500 and a one-year sentence of unsupervised probation for possession of a weapon for a dangerous purpose. He received a deportation or removal order in December, 2010. His right to appeal this deportation order to the Immigration Appeal Division was foreclosed under the Immigration and Refugee Protection Act by virtue of the fact that he had received the two-year sentence in 2007; a sentence of anything less than two years would have preserved this right of appeal. Despite having already served the two-year sentence, the appellant sought to have the sentence reduced on the basis that the sentencing judge had not considered the immigration consequences of the sentence.
The Court held that the sentence should be reduced. Finding first that the sentencing judge's failure to consider the appellant's immigration status amounted to an error, MacInnes, J.A. went on to reject the argument that the two-year sentence should nonetheless be upheld given the appellant's subsequent criminal conduct. While noting that there appeared to be a negative impact on broader societal interests in reducing the original sentence despite the appellant's post-sentence criminal conduct, the Court held that, given the "unique or near unique circumstances of this case," the post-sentence conduct was not sufficiently serious to result in the maintaining of the two-year sentence. MacInnes, J.A. stated that the fact that the accused had already served out his sentences, and that to uphold the sentence would give rise to a disproportionately severe penalty in this case, weighed in favour of the Court's holding. As a result, the Court varied the appellant's original sentence, reducing it by one day.
July 15, 2011
Link to Decision
Mark Carter & Kai Sheffield
*
No comments:
Post a Comment