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Pandemic no reason to give lighter sentence: judge

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ST. JOHN'S, N.L. —

The Telegram

A Corner Brook judge has sentenced a 19-year-old man to a longer prison term than the Crown was asking for, pointing out that a pandemic can’t allow dangerous offenders to receive more lenient sentences.

“It cannot result in offenders who pose significant risks to the community being sentenced to community-based sanctions,” wrote provincial court Judge Wayne Gorman in sentencing Troy Day for a slew of serious crimes. “An offender who constitutes a danger to the public cannot be sentenced to a non-custodial sentence solely because incarceration might increase her or his susceptibility to the virus that underpins the pandemic.”

Gorman’s comments come at a time when a number of defence lawyers, prison law associations and other advocates have been calling for the release of certain inmates in an effort to reduce the spread of the coronavirus in prisons, though they have been clear in suggesting the release apply to those who do not put the community at risk.

In Day’s case, a pre-sentence report deemed him at a “99 per cent chance” of committing another crime.

Day was convicted 19 offences committed in October and November of last year. Among them: punching a police officer in the face; robbing a convenience store while wielding a knife and wearing a mask (and hugging the clerk on the way out); trying to break into a Tweed store; stealing two vehicles; breaking into a man’s home, ransacking it and leaving through a window with money and cigars, and knocking over a heater and catching some bedsheets on fire in the process; stealing gas; shoplifting from Walmart; and other crimes.

A woman whose vehicle Day stole submitted a victim impact statement to the court, saying she had suffered significant loss as a result of the crime.

At age 60, she was forced to withdraw from a training program in which she was enrolled, does not trust people anymore and experiences panic in certain situations.

She asked the court to order restitution of $1,000, which was the amount she had to pay as an insurance deductible. Her insurance company also sought restitution in the amount of $29,798.55 for the vehicle.

The Crown argued for a jail term of four to four-and-a-half years for Day, noting his young age and the hope of rehabilitation warranted it. The prosecutor also asked for restitution requested by the complainant, but did not seek a restitution order for the insurance company, given the amount and Day’s circumstances.

The defence recognized the seriousness of the crimes and the need for a prison sentence, but urged the judge not to lose sight of Day’s rehabilitation potential, pointing to his age, the fact that he is a first-time adult offender, his addictions issues and guilty pleas. She argued that a four-year sentence was appropriate.

Gorman went above those suggestions and gave Day a total sentence of five years. He ordered the majority of the individual sentences to be served concurrently.

“But for his age and pleas of guilty, I would have imposed a longer sentence,” the judge added.

Gorman noted Day’s pre-sentence report indicated he constitutes “a very high risk” to reoffend.

“(The author of the report) concludes that ‘Mr. Day has approximately a 99 per cent chance of recidivating,” the judge said.

He stressed Day’s various crimes put members of the public at risk and affected the daily life of some of the victims by violating their privacy and sense of security. The assault on the police officer was especially dangerous, since the officer had his gun in his hand at the time.

Gorman noted Day’s crimes were not overly sophisticated, except when it came to the use of a mask.

With credit given at an enhanced rate for the time Day has spent in custody since his arrest, he has just under four-and-a-half years left to serve. He has also been given one year to pay $1,000 to the woman whose vehicle he stole.

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