THE COURT:

BETWEEN:

COUNSEL:

G. TOMLJANOVIC

For the APPELLANT

C. G. LANE

For the RESPONDENT

[1] The respondent was convicted under ss. 334(b) (theft under), 334(a) (theft over), 249(1)(a) (dangerous driving), 355(a) (possession over), and 145(3) (unlawfully at large) of the Criminal Code of Canada . It is the decision of this Court that the appeal must be dismissed.

[2] This appeal arises out of the following facts. The sixteen-year-old accused and a friend broke into a vehicle and stole a cell phone. They then stole a second vehicle which they eventually abandoned. A week later they stole a vehicle and were pursued by the police through the city. The accused was driving. It was a very short chase, eventually the vehicle turned into a farmer's field, and as the police lost sight of the vehicle they quit following. A third vehicle was stolen and the accused and the same friend were apprehended. The accused was released on a recognizance, requiring him to have no contact with the friend, and three days later they were found together in a store. The friend, who had one prior conviction, was sentenced to five months custody after pleading guilty to similar offences, plus one unrelated break and enter charge.

[3] The sentence imposed on this accused was 18 months probation, community service of 200 hours and compensation. Aggravating factors here were the number of separate property offences on different dates, the value of the property stolen, the impact on the victims, damage to the vehicles, and the police chase which always creates a dangerous situation. As well, there is a violation of a bail condition. However, there were many mitigating circumstances, including the guilty plea, no prior record, 16 days pre-trial custody, participation in a community conference with two of the victims, letters of apology to the victims, three days personal service to one of the victims, return to school and employment. In fact, one of the victims attended in court to support the appellant in opposing the appeal of the sentence.

[4] The Crown argues that the sentence is demonstrably unfit in that it fails to give proper regard to the deterrence required for others from similar police chases. This Court has stated in earlier cases that engaging in a dangerous police chase is egregious conduct and that deterrence is the major factor. Counsel pointed us to R. v. J.K. (1992), 120 A.R. 312 (C.A.) and R. v. A.J.N. (1994), 157 A.R. 273 (C.A.). Both those cases predated the amendments to s. 24(1) of the Young Offenders Act which states:

The youth court shall not commit a young person to custody under paragraph 20(1)(k) unless the court considers a committal to custody to be necessary for the protection of society having regard to the seriousness of the offence and the circumstances in which it was committed and having regard to the needs and circumstances of the young person.

[5] Importantly, both R. v. J.K. and R. v. A.J.N. contained significantly different facts from those involved in this case, as they relate to the police chase. Both cases involved highspeed chases. This was a case of the vehicle being followed for a very, very short distance at a considerably lower speed. The vehicle quickly left the public roads and went into a farmer's field.

[6] The sentencing judge did not err in principle. Unless the sentence is demonstrably unfit, the Supreme Court of Canada has repeatedly advised the appellate courts that the decision of the sentencing judge is owed deference, absent an error in principle, a failure to consider a relevant factor or overemphasis of one of the factors.

[7] We are of the view that this sentencing judge considered all of the circumstances relating to both the offence and the offender. He was fully cognizant of the mitigating and aggravating factors, he did not make an error in principle and his sentence is not demonstrably unfit. The appeal is dismissed.
APPEAL HEARD on APRIL 26, 2000

MEMORANDUM FILED at CALGARY, Alberta,

this 5th day of June, 2000