Leo Crockwell got an early Christmas gift Thursday — a judge’s declaration that he should be out of jail earlier than expected.
In fact, the 58-year-old could be home for the holidays if corrections authorities work out the details in time.
“Oh, he’s a happy man,” Crockwell’s lawyer, Nick Westera, said following proceedings at Newfoundland Supreme Court in St. John’s.
Crockwell was all smiles as he was escorted out of the courtroom after a hearing to argue the issue. His mother was also visibly elated as she whispered in Crockwell’s ear and patted him on the shoulder before he left.
The Bay Bulls man — convicted of several charges as a result of an eight-day armed standoff with the RCMP in December 2010 — had filed an application, claiming adult corrections and prison administrators miscalculated his sentence and, as a result, have kept him behind bars longer than he should have been.
Justice Alphonsus Faour agreed.
He ruled Crockwell’s sentence should have been calculated based on his four-year sentence.
Corrections authorities were using the calculations based on the time Crockwell had left to serve after credit for pre-trial custody — 21 months and 25 days.
On June 1, 2012, a jury convicted Crockwell of four charges — assaulting his sister with a weapon (a gun), discharging a weapon in the commission of a crime, carelessly using a firearm and mischief by interfering with property.
On Feb. 15, Justice Richard LeBlanc sentenced Crockwell to a global sentence of four years (1,460 days), with three years’
probation. Crockwell was given straight-time credit for the
797 days he’d already spent in custody.
According to corrections, Crockwell was due to be released in May 2014, when two-thirds of his remaining time has been served.
Crockwell’s application stated the proper way to work out his sentence would be to calculate two-thirds of the total sentence. That would mean he was supposed to be freed from jail in August of this year.
Westera, argued Crockwell’s pre-trial custody was part of his sentence.
“The penitentiary people only looked at the post-trial remission,” Westera said. “I think that’s unfair. That’s absurd.”
Westera pointed out that if Crockwell had pleaded guilty immediately after his arrest, he would’ve had nine months less time in jail. He said he shouldn’t be punished with more prison time just because he exercised his right to have a trial.
The Justice Department’s lawyer, Philip Osborne, said that when Justice Richard LeBlanc imposed a sentence of four years, he gave Crockwell straight-time credit for time he’d already spent in pre-trial custody, leaving 21 months and 25 days left to serve. That is the warrant of committal and is the sentence that should be considered, he argued.
Osborne pointed out LeBlanc also gave Crockwell probation, which is only imposed in sentences under two years.
However, in rendering his decision, Faour said the projected release date should be determined from the four-year sentence because that was the mandatory minimum for the charges, according to the Criminal Code of Canada.
“I’m satisfied that the Supreme Court of Canada has given direction that the normal practices may be departed from where there’s a mandatory minimum,” Faour said. “And it’s quite clear (LeBlanc) imposed a sentence of four years.”
Faour added, “I realize there are anomalies and ambiguities all over the place, but when there are, they should be resolved in favour of the accused.”
There was confusion about the decision. Faour suggested the issue should have been addressed at the time of sentencing. He told Osborne he is welcome to take the issue to the Newfoundland and Labrador Court of Appeal.
When approached after proceedings, Osborne said he did not know when corrections would release Crockwell. He said he would consult with the department before making any decisions on an appeal.