SOMBA K'E/YELLOWKNIFE
A commercial fisher who pleaded guilty to four Fisheries Act charges in 2012, then appealed the sentence, has been granted a reprieve.

Commercial fisher Brian Abbott will need to make a new argument on his sentence for four Fisheries Act violations, the Supreme Court ordered last week. Justice Karan Shaner found the sentencing judge failed to give lawyers proper notice of her intention to reject their suggestions for Abbott's sentence. - NNSL file photo

Brian Abbott, owner and operator of Great Slave Fish Products Ltd., told NWT Supreme Court in January there was "never a fair trial" dealing with his charges.

In July and August 2011, fisheries officers charged Abbott with failing to register a commercial vessel, fishing in an area closed to commercial fishing, using improperly marked fishing nets and failing to fill out a commercial harvest logbook completely and accurately on

a daily basis. He pleaded guilty to all four charges and was fined $6,000 on Aug. 8, 2012.

Abbott's lawyer and the Crown lawyer prosecuting the case had both agreed a fine of $3,000, 40 hours of community service and a public apology in "the local newspaper" would be an adequate sentence.

But during the sentencing hearing, territorial court Judge Bernadette Schmaltz disagreed, upping the fine to $6,000 while removing the other conditions suggested.

In his Supreme Court appeal on Jan. 15, Abbott asked that his guilty pleas be withdrawn and a new trial be set. He said he never understood the charges and was given incorrect advice by his lawyer.

In a written decision filed Monday, Justice Karan Shaner stated Abbott won't be able to withdraw his guilty pleas. She noted discrepancies between his appeal submissions and what he said in court during his sentence in August 2012.

Shaner wrote that Abbott "never provided any indication that he did not agree" with the proposed sentence.

But looking at the judge's sentence, Shaner stated she felt Schmaltz failed to "clearly and plainly" show her intention to reject the Crown and defence suggestions.

Judges are never forced to accept joint submissions for a sentence, although they often do.

Shaner said while Schmaltz asked how the proposed sentence would meet sentencing goals and principals, "she did not indicate the answers she received in response to those inquiries failed to address her concerns."

Although the Supreme Court can change a sentence imposed by the territorial court, Shaner said she would rather hear new submissions by Abbott and the Crown on what they think is an appropriate sentence.

Abbott and the Crown must now provide the court with the dates they are available to make these submissions.

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