FACTS: Appeal by the Crown from a conditional sentence imposed on the respondent Curtis for a number of offences which included assault and uttering death threats. The Crown submitted that the sentencing judge failed to properly address the criteria for the imposition of a conditional sentence. Chief among these was that a conditional sentence should only be available where the offender presents no risk to public safety. The Crown argued that monitoring and supervision were insufficient to control Curtis' violent tendencies, as demonstrated by the fact that many of the offences were committed when he was being monitored or supervised.
The pre-sentence report indicates the appellant was in the care of Child and Family Services from age 3 to 18, and resided in three foster homes and a residence for adolescents with social deficits. At 18, he moved to an adult group home, but walked away after 4 months. The Public Guardian says he is a high-needs subject and finding an appropriate placement is difficult. The appellant has been diagnosed with a number of disorders including ADHD and Operational Defiant Disorder. FASD is speculated but not confirmed. He is of mid-level intellectual disability with functioning in the low range. He has cognitive and emotional deficits that require his supervision, and exhibits dangerous behaviour when not medicated. He has some Aboriginal ancestry and participates sporadically in Aboriginal activities.
HELD: Appeal allowed. A sentence of 18 months' incarceration was imposed less actual time served on the conditional sentence. The probation order was struck. Although throughout the various hearings to determine the sentence the trial judge acknowledged that Curtis had violent tendencies, she never addressed the fundamental issue of whether the safety of the community would be endangered. She concluded early on, and without reasons, that jail would be inappropriate for Curtis and then set to work to create a highly structured setting outside of jail. A conditional sentence was not available given that the evidence established that Curtis was a violent offender and that the community was at risk.
CanLII link: http://www.canlii.org/en/ab/abca/doc/2007/2007abca387/2007abca387.html