Nunavut Court of Appeal overturns Pond Inlet man's sentence
Justice Smallwood ruled trial judge had erred in rejecting Crown and defence's joint submission sentence
The Nunavut Court of Appeal has overturned the sentence imposed on a Pond Inlet man last year.
On March 27, 2018, Nunavut Justice Paul Bychok sentenced Lanny Kippomee, then 36, to seven months in jail after Kippomee pleaded guilty to break-and-enter and breach of probation following a break in at a Co-op building in the community.
In delivering his sentence, Bychok dismissed two joint sentencing recommendations made by Crown and defence lawyers. The first submission was for one month for each conviction served concurrently, plus probation. A second joint submission calling for one month for each conviction served consecutively, and probation, was also rejected as too lenient.
Kippomee appealed the sentence imposed by the judge. Court of Appeal Justice Shannon Smallwood heard the appeal on Feb. 12, 2019, and her memorandum of judgment was filed in Iqaluit July 30.
Smallwood roundly rejected Bychok's sentence and the reasoning behind it.
In her written judgment, Smallwood stated that a joint sentencing submission must only be rejected in exceptional circumstances — essentially where the recommended sentence is so disproportionate to the crime that reasonable people would lose faith in the judiciary, or where the sentence is "contrary to the public interest."
Smallwood ruled neither circumstance held here.
She stated in her judgment that Bychok "erred in rejecting the joint submission, misapprehended material facts, and erred in his assessment of the aggravating factors."
Sobriety as aggravating factor
Smallwod rejected Bychok's listing of Kippomee's sobriety as an aggravating factor in the case. Smallwood stated that although intoxication can be an aggravating factor in many cases, "the same cannot be said for being sober while committing an offence."
Smallwood stated that Bychok's sentencing decision took sobriety to suggest premeditation and planning. Smallwood ruled that in the absence of other evidence of Kippomee having planned his crime, "sobriety in committing an offence … does not establish planning and premeditation."
The judge ruled that the original joint sentencing submission of one month for each offence, served concurrently, followed by 12 months probation, was — despite being at the "low end of the range" — reasonable.
In granting the appeal, Smallwood ruled that original sentence and probation order would stand.
Kippomee was on bail during the appeal.