FASD & the Justice System
R. v. Reykdal, 2008 NSCA 110; 271 N.S.R. (2d) 366

FACTS: The appellant, who was represented by counsel at the sentencing hearing, received a five year sentence for robbery and a one year sentence for assault with a weapon, the offences committed within seven months of each other. Both were crimes of violence. He had a record of nine priors including one for break and entry and another for assault, for which he had received a conditional disposition. He is a 27 year old Aboriginal offender but was adopted at an early age and raised in a non-native community by a loving family. He suffers from FAS. Substance abuse drives his criminal behaviour. Self-represented on appeal, the offender argued that the sentence is excessive.

HELD: Leave to appeal granted but appeal dismissed. While it would have been preferable had the judge expressly adverted to the Gladue report, he was alive to the particular early hardships suffered by this Aboriginal offender.

In sentencing the appellant the judge had noted that accommodation for his substance abuse had been made in at least one past sentencing. He was alive to the mitigating significance of the appellant's early hardship and his FAS. Noting that gratuitous violence had now become a part of the substance abuse, the judge concluded that society could only be protected by the appellant's removal through incarceration. Particularly aggravating was the fact that, notwithstanding the violent robbery, the appellant went on to commit another violent assault less than a year later. The sentencing judge expressed his view that a lesser sentence would not reflect the serious nature of the crimes, nor provide an adequate opportunity for rehabilitation.

The sentence was not reflective of error in principle or over or under emphasis of relevant factors and, applying the deferential standard of review, was not demonstrably unfit.

CanLII Link: http://www.canlii.org/en/ns/nsca/doc/2008/2008nsca110/2008nsca110.html