Court of Appeal upholds judge’s ruling for attack in Corner Brook park
A man says 30 months in jail for robbing a 16-year-old girl’s backpack isn’t fair and he should have received only an 18-month sentence for the offence.
© — Western Star file photo
While the Newfoundland Court of Appeal allowed Jonathan Kelly’s argument, saying there were serious issues raised in the appeal, it disagreed the sentence was demonstrably unfit and dismissed the appeal.
Kelly, 29, pleaded guilty to robbery, theft and two breaches of probation and was sentenced Feb. 6, 2013 to 30 months for robbery, four months for theft and one month for each breach of probation, for a total of 36 months. His appeal was heard Jan. 8, 2014 and the three justices filed its decision Feb. 17, 2014.
According to the facts set out in the appellate court’s decision, a 16-year-old girl was walking on the Glynmill Pond Trail in Corner Brook July 24 when she saw a man (Kelly) walking toward her.
As she passed him, he grabbed her from behind, around her throat, and dragged her into a wooded area off of the trail. She began to scream and Kelly told her to “shut up.”
She told Kelly to take her backpack, but he continued to drag her into the woods. He released his grip on her and ran off through the woods, and she crawled back to the trail. She screamed and four people walking nearby ran to her aid. She suffered minor cuts to her legs and back.
Kelly went to a friend’s house and asked for help to get rid of his clothing and footwear, which was subsequently seized by the police from the friend’s shed.
At the scene, the police found a towel Kelly had been wearing around his neck when he attacked the teen, and forensic testing found samples of DNA on it which matched the high school student’s and Kelly’s.
Kelly, of Gillams on the province’s west coast, was arrested in November 2012 and admitted to police he attacked the girl in order to get money to purchase drugs.
During sentencing, she told the court the incident terrified her and she was traumatized as a result.
“I had a huge fear of leaving my house and I lost my trust in people,” she said at the time in her victim impact statement.
She gave examples, stating that she rarely left the house during the rest of the summer, did not get a job or her learner’s driving permit, suffered panic attacks and missed school, which affected her grades. She wrote that she changed from being an outgoing, energetic, happy teenager to being “sad and scared.”
Kelly was enrolled in a plumbing program at the time of his arrest and was on probation for theft and fraud charges as well as uttering threats, causing a disturbance and breaching court orders.
Kelly’s lawyer on appeal, St. John’s defence lawyer Derek Hogan, argued the sentencing judge erred by arriving at a relevant sentencing range of two to four years, which is too high, and relied on cases in which the offender had a more serious criminal record and on cases where the offender used a weapon, whereas Kelly did not.
“Regarding the first point, the sentencing judge did not set out, nor did he rely on, any particular sentencing range. To the contrary, he stated that, “a prescriptive range of sentence for offences such as this one has not been established,” Justice Malcolm Rowe wrote on behalf of the panel.
“Counsel for Mr. Kelly is accurate when he says that the sentencing judge had regard to and placed reliance on some cases where the offender’s record was worse than Mr. Kelly’s or the offender had used a weapon. But this does not necessarily constitute a reversible error,” reads the decision.
Rowe stated consideration must be given to how the judge used the cases.
What the sentencing judge did in this case, says the decision, was an extensive review of sentencing precedents indicating throughout that he was mindful of differences among offenders and offences.
“In this case, the sentencing judge struggled with the fact, acknowledged by counsel, that there is a paucity of cases where key facts resemble those in this case. Of necessity, the trial judge relied on some cases where the circumstances of the offence or of the offender were, to a degree, different. That is not fatal,” Rowe wrote.
He said one should avoid the idea of “watertight compartments” in sentencing precedents.
“Robbery with a weapon can be less serious than the robbery in this case, where the offender took the complainant by surprise, grabbed her by the throat, from behind, in a place out of public view, refusing to simply take her valuables when offered and instead dragged her into the woods in a way that terrified her,” reads the decision.
“The impact on the victim in this case is far more serious and enduring than in many robberies where a weapon is involved. In his factum, counsel for Mr. Kelly argues that the sentencing precedents upon which the sentencing judge relied were misapplied. For the reasons set out above, I cannot agree,” concluded Rowe, whose reasons were concurred with by Justices Gale Welsh and Michael Harrington.