23 August 2009

Rumpole and Rorke’s drift

From the agreed statement of facts in R. v Aylward comes a description of the events on the night in question which might help readers appreciate the incident.

You may recall this as the case in which Judge John Rorke, as he then was, uttered his now infamous words about pots to piss in and the young accused having put both the judge and the Crown prosecutor in a jam.

Note that in reproducing the agreed statement of facts, your humble e-scribbler has reduced the names of  the young men involved in the sorry episode to initials, with the exception of the young man convicted by Judge Rorke.  Dates of birth for each have also been omitted as well as the street numbers in the addresses at which the incident took place. 

At the time of the incident, all but one of the young men present were over the age of 18 years and none was over the legal drinking age.  The one young man under age 18 was present but was not identified as playing a key role.

The name and age of the victim are  also not given in the version below.

Although this information is part of the public record and as such are readily available the information the information is not necessary to appreciate the incident and the sentence imposed initially as well as the change in sentence on appeal.

[Taken from: R. v. Aylward, [1998] N.J. No. 338, 170 Nfld. & P.E.I.R. 185, 22 C.R. (5th) 191, 40 W.C.B. (2d) 494 Docket: 98/117, the decision rendered on this case on the appeal by the Crown about the sentence imposed.]

On June 21, 1998, Jeffrey Aylward … attended a party hosted by MR …at his residence at …Paddy Dobbin Drive, St. John's, Newfoundland.  MR’s parents and younger brother were away on vacation at this time. Most of his guests departed by about 1:00 a.m. on June 22, 1998. Remaining at the residence were Jeffrey Aylward, MR, RR …, RL …, AH …, SM …, MJ …, and AH ... .

At about 1:30 a.m. someone suggested ordering a pizza. Since no one had any money to pay for the pizza, it was decided that it would be ordered anyway, and Jeffrey Aylward and RR would steal it from the delivery man. MR placed the order for the pizza with the local establishment "Pizza Pros". He ordered it to be delivered to … Paddy Dobbin Drive, a house two doors up the street, and made up a phone number. At the time of placing the order, MR knew that he was setting up the pizza delivery man. When the order was initially placed, the intent was to simply steal it; however, after the order was placed Jeffrey Aylward and RR decided that they did not want to confront the delivery man empty handed.

Alcohol was consumed that evening. Jeffrey Aylward believes he drank around twelve (12) beer; RR, eight (8); and MR, three (3).

Jeffrey Aylward and RR first asked MR for masks and then for weapons. M R gave Jeffrey Aylward a ski-mask and RR a "Freddy" Halloween mask. Jeffrey Aylward was given a "Tonfa", which is a wooden t-shaped baton designed for the sport of Kung Fu, and RR was given a wooden stick, about two and a half feet long. Since RR found the Halloween mask to be uncomfortable, he ended up not wearing it but replaced it with a t-shirt, which he wrapped around his head and face.

RC …, who works as a delivery man for "Pizza-Pros", arrived at … Paddy Dobbin Drive at approximately 2:25 a.m.. Since there were no lights on at the residence, RC proceeded to check the area. As he approached the house, he heard someone from behind say "we'll take that". RCs thought it was a prank and said, "You'll actually stealing a pizza"? The two men then said, "Give us the fucking pizza". At this point, RC realized the seriousness of the situation and handed the pizza over to Jeffrey Aylward and RR. Both RR and Jeffrey Aylward held their weapons in full view of RC. Although he was not injured in any way, RC felt threatened during this encounter. Jeffrey Aylward and RR then returned to … Paddy Dobbin Drive, and the pizza was eaten by all in the group except AH, who had since gone to bed.

The Royal Newfoundland Constabulary were notified at 2:25 a.m. of the robbery. With the use of a police dog, Jeffrey Aylward and RR were tracked to …  Paddy Dobbin Drive. The police approached the residence and asked to speak to the owner. MR came forward and agreed to let the officers look around. The weapons, masks, and pizza box were recovered. A warrant to search was executed at 7:35 a.m. and the masks, weapons, and pizza box were seized.

MR, RR, and Jeffrey Aylward gave cautioned statements to the police, admitting to their involvement. RL, AH, SM, MJ and AH also cooperated with the investigation by providing statements.

The appeal decision summarised the sentence as follows, at paragraph two:

2 In addition to the statutorily prescribed conditions, the respondent was ordered to,

-   Abstain from the taking or consumption of alcohol or other intoxicating substance.

-   Abstain from the taking or consumption of drugs except in accordance with a medical prescription.

-   Abstain from owning or carrying a weapon, ammunition or explosive substance.

-   Perform 200 hours of community service work over 12 months.

-   Attend and participate actively in such awareness or educational programs or counselling sessions to which you might be referred by your probation officer, and in particular any relating to alcohol, drug or substance abuse or addiction, and anger management and control.

-  Write a letter of apology to [RC].

On the appeal, the court decided in part:

11 Nevertheless, we are in full agreement with the Crown's second submission. It has been likewise expressed in all of the above cases that because a conditional sentence is "a sentence of imprisonment" (s. 742.1(a)) which is being served "in the community" (s. 742.1(b)), it is appropriate that there be some restrictions on the liberty of the offender during the period of such imprisonment. Otherwise, it obviously would not be imprisonment and would not be distinguishable from a probation order. In our view, while such a condition is not a mandatory condition under the legislation, only in the rarest of cases should there be no such restriction.  [Emphasis added]

12 As has already been stated, the offences of which the respondent had been convicted are most serious ones. The surrounding circumstances and, in particular, the transition of what appears to have started out as a drunken prank conceived on the spur of the moment by a bunch of 18 year olds, into a criminal offence, nevertheless justify a sentence of only one year's imprisonment, to be served in the community. However, the nature of that offence is not, in our view, properly reflected without a limitation on the liberty of the respondent and the trial judge was in error in not doing so. We therefore intend to additionally impose such a condition.

13 In the result therefore, leave to appeal is granted and the appeal is allowed in part in that, in addition to the conditions imposed by the trial judge, the respondent, for the remainder of the conditional sentence period, will be confined to his place of residence from 7:00 p.m. to 7:00 a.m., except where it is necessary to leave such residence for the purpose of compliance with other conditions imposed by the trial judge and this Court; to continue attending school; to have no contact with the other persons involved in the offence; and, to have no contact with the complainant or his place of business. Additionally, following the serving of the sentence prescribed herein, the respondent will be subject to a probation order for a period of two years. … [Emphasis added]