New & Notable: High End & Fit

Jeffrey Narvie went to an acquaintance’s home to sell him a small amount of marijuana. The deal didn’t go as planned for either the buyer, who was attacked and robbed, or the seller, who was subsequently arrested. After a trial Narvie was found to have held a knife to the victim’s throat, robbing him of his cell phone and $230.

The Crown argued that Narvie, an aboriginal person from the Mi’Kmaq band in New Brunswick should be sentenced to 3-5years in custody. Narvie submitted that 12 months would suffice. The trial judge imposed a sentence of 4 years, which “included three six-month concurrent sentences for the counts of mischief, breach of probation, and possession of stolen property, as well as nine months for trafficking in marijuana,” [@para 9]. Narvie appealed on the basis that the sentence was demonstrably unfit: 2014 ABCA 145.

In fashioning the sentence the trial judge noted:

  • The lengthy related criminal record
  • The unfavourable pre-sentence report
  • Longstanding substance abuse issues
  • A lack of remorse
  • The principles in Gladue, 1999 CanLII 679 (SCC)

On appeal Narvie argued that the sentencing judge overlooked a number of mitigating factors including:

  • A 10year gap in Narvie’s criminal record
  • The prior attempts to overcome addiction issues
  • Employment in the year prior to the offences
  • The unsophisticated nature of the crimes
  • The absence of injuries to the victim [@para 10]

The Crown conceded that the 9 month sentence for trafficking was overly harsh given the small amount involved and that the offender’s related drug record was minimal. The Court imposed a sentence of 60 days concurrent on the trafficking offence.

In dismissing the remainder of the sentence appeal the Court held that:

While the robbery sentence may have been at the high end, we cannot say it was demonstrably unfit. We are satisfied it fell into an appropriate range, given all the facts present here. The test is not whether a lower or higher sentence might have been imposed. It is whether, in this case, the sentence for robbery was demonstrably unfit. We are not convinced that it was. [@para 13]

Furthermore, although the sentencing “judge may not have mentioned every single factor, (…) all the matters he is said to have overlooked were, in fact, put before him. He carefully considered the principles of sentencing and made no errors of principle” [@para 12].