FASD & the Justice System
R. v. Andrew, [2008] B.C.J. No. 602; 2008 BCCA 141

FACTS: Appeal by the Crown from the conditional sentence of two years less a day imposed on Andrew after his conviction for manslaughter. Andrew was 23 years of age at the time of the offence. He had a minor criminal record unrelated to violence. He grew up on reserve and spent five years in foster care. He had been assessed as a teenager to have FAS. Andrew was remorseful from the time he first gave a statement to the police. He had been responsive to counselling as a youth, had attended addiction counselling at the time of the sentencing and was prepared to attend further counselling. He had been under the influence of alcohol and marijuana at the time of the offence and had quit using them as a result of the incident. He had been steadily employed for two years prior to the sentencing and had been compliant and cooperative while on interim judicial release. The sentencing judge also took aggravating factors into account; namely, a weapon was used and it was used twice, intoxicants were involved and there were other avenues open to Andrew when he was attacked by the victim.

HELD: Appeal allowed, and Andrew sentenced to two years and five months' imprisonment. The Court of Appeal concluded that the sentencing judge erred when he imposed a conditional sentence. The sentencing judge took the mitigating factors of this case into account to their fullest possible extent when he concluded that an appropriate sentence was three years before crediting the pre-trial custody. Therefore the conditional sentence given in this case was illegal in the sense of being unavailable under the provisions of the Criminal Code which require a sentence of two years less a day for a conditional sentence.

CanLII link: http://www.canlii.org/en/bc/bcca/doc/2008/2008bcca141/2008bcca141.html