Appeal court overturns two-for-one remand credit

REGINA After the Saskatchewan Court of Appeal found an inmate’s assault insufficient to merit additional remand credit, a convicted killer effectively ended up with 20 more months to serve on his sentence.

Nathan Russell Mullen, 34, appeared earlier this month at the province’s highest court where the Crown asked to have the remand credit portion of the man’s sentence scaled back.

Mullen received an eight-year term in August after pleading guilty to manslaughter in the April 21, 2014, choking death of 27-yearold teacher Leslie Dwyre. The couple was in the process of separating at the time.

Mullen reported having no memory of the fatal assault that occurred during an argument in the estranged couple’s Estevan apartment. A forensic pathologist determined Mullen asphyxiated Dwyre by pressing an arm against her throat.

Justice Janet McMurtry handed down eight years less remand credit, but the appeal court heard there was some confusion after that in terms of the credit. While McMurtry initially said Mullen had three years left to serve, she went on to credit him with 80 months

There was simply no legal or factual basis in this case for the sentencing judge to exceed the statutorily-imposed maximum remand credit.

— double the 40 months he’d actually spent in pre-sentence custody. The effect was just 16 months going forward on Mullen’s sentence, a finding the Crown appealed.

Earlier this month, Crown prosecutor Anthony Gerein argued the sentencing judge had no authority under the law to grant more than 1½ days for each day spent on remand, which is the maximum set out by Parliament in the Criminal Code and upheld by the Supreme Court of Canada.

The Court of Appeal — represented on this matter by Justices Neal Caldwell, Maurice Herauf and Peter Whitmore — found that as the two-for-one credit was based on nothing beyond an inmate-oninmate assault on Mullen, it could not stand. The court dropped the remand credit back to 60 months, or 1.5 credit, once again leaving him with three years to serve.

In short written reasons, the court determined McMurtry found no charter breach and no improper action by the “state” that might take the case beyond the set maximum.

“No agents of the state were alleged to have been involved in that assault; there was no evidence of any state misconduct …,” the court ruled. “On this foundation, we find there was simply no legal or factual basis in this case for the sentencing judge to exceed the statutorily-imposed maximum remand credit.”

Christopher Funt, Mullen’s lawyer at the Court of Appeal hearing, argued his client’s rights had been breached when the state failed to adequately protect him while on remand, a breach he said should merit additional credit.

“We don’t punish people in this country by subjecting them to physical violence,” he said, arguing the starting point here is that safe custody will be provided.

But Gerein — and, in comments made during the hearing, Caldwell — countered by saying the state didn’t put Mullen in custody; he did, by his own actions.

“The starting point here is there’s a criminal action,” Caldwell said at the hearing. “There’s criminal conduct and it’s assessed by the state as being criminal and subject to a punishment or penalty which then puts them into the state’s (custody).”