Appellant plead guilty to one count of b&e and theft. Worth $2700. Returned items to storeowner. No violence, no vandalism. Judge knew nothing of background. Family said they would help him find job and he could live with them.
Trial – one year (didn’t take into account his background or history.
CA – time served, on year probation.
It this a demonstrable unjust sentence?
Imprisonment for first time offenders (including youthful offenders) should only be used where the gravity of the circumstances justifies it, the primary objective should be deterrence and rehabilitation, and courts should seek community-based dispositions first.
Judge must look at all mitigating factors (pre-sentence report comes into play) and background information on the offender when determine what the sentence should be – and make sure it is proportionate to the offence
*Even where break and enter is prevalent in a particular community, it is a circumstance to be taken into consideration, but not the exclusive consideration. (R. v. Rohr 1978) – judge used it as the only thing in his decision.
*Judge has a duty to consider whether any disposition other then imprisonment would be appropriate – must look at pre-sentence report or background offender for 1st time offenders.
*Primary objectives in sentencing 1st offenders and youthful offenders (except serious offences and violence) are:
*Trial judge should consider community-based dispositions first and impose more serious forms of punishment only when necessary (ss. 718, 718.2).
*Even when custodial sentence is appropriate (youthful offender), a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather then for the purpose of general deterrence (R. v. Vandale 1974)
Sentence was grossly disproportionate. Too much emphasis was put on general deterrence by trial judge. Did not take into account mitigating factors.