Multiple offender wins sentence reduction

Appeal judge applies totality principle

A prison term of seven years was reduced to five-and-a-half years following an appeal to the Grand Court on Friday by Donald Calvin Hooker.

Hooker, 42, was sentenced in Summary Court in April for two burglaries, two thefts, a criminal trespass and traffic offenses. He told Magistrate Philippa McFarlane of his intention to appeal because he thought her sentence was “very harsh and excessive.” He complained that the magistrate had considered his previous convictions when she listed the aggravating and mitigating factors in each incident.

Attorney John Furniss presented this argument to Justice Michael Mettyear, but switched to the “totality principle” at the judge’s invitation.

This basis for sentencing has been used for years. It was explained in the sentencing guidelines issued by Chief Justice Anthony Smellie in October 2015.

It states: “The Court, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behavior before it and at the same time, is a sentence which is just and proportionate. This is so whether the sentences are concurrent or consecutive. Thus, concurrent sentences will ordinarily be longer than a single sentence for a single offence. It is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences. It is necessary to address the offending behavior, together with the factors personal to the offender as a whole.”

Crown counsel Nicole Petit pointed to Hooker’s record of offending. When he was last sentenced, he had 65 previous convictions, including burglary, and other dishonesty and drug-related offenses.

Justice Mettyear summarized the cases for which Hooker had been sentenced most recently: a residential burglary in which the house was ransacked and items of sentimental value were stolen; a residential burglary in which expensive tools were taken; theft of items valued at $450 from a car; theft of clothing with an unknown value from a Red Cross donation container; criminal trespass, with nothing taken.

The incidents occurred between 2012 and 2015. Hooker pleaded guilty to all, telling the court that drug addiction was at the root of his behavior.

Justice Mettyear referred to the magistrate’s written ruling. She said she had kept the principle of totality at the forefront of her mind. He said he accepted that she had considered it, but he did not see how she had applied it. In his judgment, seven years was too long: he noted that the crimes were non-violent, non-sexual and “committed by a hopeless addict.”

He agreed with the magistrate that the burglaries were the most serious offenses and he upheld the sentences of 34 and 22 months, to be served consecutively. The other sentences were reduced, with some running concurrently for a total of 66 months.

The judge said he saw nothing wrong with the magistrate’s individual sentences, but when a court looks at all the offenses, it need not go through a mechanical process of assigning sentences and adding them up. He suggested setting a global sentence for the overall offending and then stepping back to adjust individual sentences accordingly.


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