R v Severight (ABCA): Court cannot impose unwarranted determinate sentence to avoid dangerous offender designation

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R v Severight (ABCA): Court cannot impose unwarranted determinate sentence to avoid dangerous offender designation

By | 2014-04-23T15:45:10+00:00 28/01/2014|Dangerous Offender, Pre-Trial Custody, Sentencing|0 Comments

In 2007, Jason Kyle Severeight (“Severight”) committed a serious assault on an ex-partner, resulting in convictions after a trial for aggravated assault and possession of a weapon for a dangerous purpose. The aggravated assault included an attempt to slash the complainant to her throat, which was fended off. The complainant received slash marks on her hands and legs during the assault. The sentencing judge accepted that three earlier and similar assaults had been committed by the accused against the complainant. Those earlier assaults had resulted in criminal charges, but not convictions. On each of those earlier assaults, the complainant had recanted. The circumstances of the 2007 assault, and the earlier offences considered in the dangerous offender hearing, are set out in the decision of Provincial Court Judge E.A. Johnson: 2010 ABPC 329.

The Crown sought to have Severight designated as a dangerous offender. In the course of accepting the Crown’s position, the sentencing judge found that the appropriate determinate sentence for the aggravated assault was 10 years in gaol, which would be reduced by between five and seven years, depending on the amount of enhanced credit given for the 43 months the accused had spent in custody prior to trial and sentencing. The resulting net sentence of three to five years was then considered by the sentencing judge in determining whether Severight should be designated a dangerous offender or, in the alternative, should be the subject of a long term offender supervision order.

In his appeal of his dangerous offender designation (2014 ABCA 25), Severight argued that the sentencing judge erred in finding that the appropriate determinate sentence was ten years minus pre-trial custody. Instead, Severight argued that the sentencing judge should have concluded that the appropriate determinate sentence was the maximum sentence for aggravated assault of 14 years. As well, Severight submitted that the sentencing judge could have disregarded the 43 months he had spent in custody prior to trial and sentencing and given him a net determinate sentence of up to 14 years in gaol. If the sentencing judge had considered the maximum determinate sentence, instead of the net sentence of three to five years custody, Severight argued that the sentencing judge ought to have concluded that a lesser measure than a dangerous offender designation would protect the public.

The Court of Appeal concluded that the dangerous offender designation should be upheld. In doing so, the Court made several useful observations on sentencing and pre-trial custody:

  1. There would have been no principled basis for the sentencing judge to deny Severight credit for his pre-trial custody. A sentencing court should ordinarily grant such credit. In the context of maximum sentences prescribed under the Code, it would thwart the intention of Parliament to sentence offenders to the maximum available sentence without consideration of their pre-trial custody.
  2. Imposing a 14 year sentence would have been inappropriate after the judge had determined that the fit sentence was 10 years. It would have been contrary to the fundamental sentencing principle of proportionality. The Court continues:

[36] In our view, this discussion shows that a maximum sentence outside a proper range and,
even worse, one which also gave no credit at all for presentence custody, would be unfair, harsh
and contrary to principle. It would create an unwelcome precedent for all manner of cases, not just
for offenders meeting the criteria for dangerous offenders. We see nothing in the Criminal Code
authorizing artificially long, even otherwise illegal determinate sentences in such circumstances.

  1. Manipulating the sentence in the way suggested by Severight would place the sentencing court into a role better left to parole authorities. The Parole Board of Canada is required to review parole eligibility for offenders subject to an indeterminate sentence after seven years in custody and every two years afterward. Imposing the maximum determinate sentence could, in fact, delay the first consideration for parole eligibility.

Image Credit: Aimee. LicenceLink

 

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