NOVA SCOTIA COURT OF APPEAL
Citation: R. v. Tattrie, 2007 NSCA 71
Date: 20070608
Docket: CAC 276364
Registry: Halifax
Between:
Trevor Miles Tattrie
Appellant
v.
Her Majesty the Queen
Respondent
Judge(s): Roscoe, Bateman and Hamilton, JJ.A.
Appeal Heard: June 4, 2007, in Halifax, Nova Scotia
Held: Leave to appeal sentence is granted and the appeal with respect to both conviction and sentence is dismissed per reasons for judgment of Bateman, J.A.; Roscoe and Hamilton, JJ.A. concurring.
Counsel: Wayne Bacchus, for the appellant
Kenneth W.F. Fiske, Q.C., for the respondent
Reasons for judgment:
[1] After a trial before Judge John G. MacDougall of the Nova Scotia Provincial Court, Trevor Miles Tattrie was convicted of several Criminal Code offences: committing an assault (s. 267(a), possession of a weapon for a dangerous purpose (s.88) and breach of probation (s.733.1)). As he was under a conditional sentence at the time of the offence, Mr. Tattrie was found to have breached that sentence in committing the assault. He breached his conditional sentence again after the assault. This is an appeal from conviction and sentence in relation to the assault offence.
[2] The three offences arose out of Mr. Tattrie’s assault on a Jeffrey McNutt. It was Mr. Tattrie’s evidence that Mr. McNutt sustained his injuries in a single, consensual altercation. Mr. McNutt testified that there were two events and that he was injured in the second when Mr. Tattrie, unprovoked, beat him with a metal pipe. A key issue was whether there was a second fight between the two. The judge rejected Mr. Tattrie’s evidence on this point and accepted that of Mr. McNutt. While I would agree that the judge, at one point, misstated the principles of R. v. W.(D.) (1991), 63 C.C.C. (3d) 397, I am satisfied on reading the decision as a whole that the judge properly applied the reasoning process in R. v. W.(D.), supra (see R. v. Boucher (2005), 202 C.C.C. (3d) 34 (S.C.C.) at ¶ 29, 56 and 59). The appeal of conviction is without merit.
[3] Mr. Tattrie was sentenced to 12 months incarceration on the assault charge, with the sentences on the s. 88 and s.733.1 running concurrently. For the two breaches of conditional sentence, he was ordered to serve the remaining 97 days of that sentence consecutively to the 12 months. Mr. Tattrie says that the judge erred in not giving him credit for time served under house arrest while awaiting trial on these charges. As stated above, he had been charged with breach of his conditional sentence as a result of the alleged beating of Mr. McNutt and with a further breach, after the assault. Pending trial of all charges he was released on a recognizance which contained conditions mirroring those of the conditional sentence, including the house arrest. There were protracted delays during the trial, largely to accommodate Mr. Tattrie. As a result, Mr. Tattrie, who had originally been conditionally sentenced to 20 months house arrest, was actually under house arrest for 28 months while the trial proceeded. However, a significant portion of that house arrest related to the terms of the recognizance.
[4] While the judge did not address the issue of possible credit to Mr. Tattrie for the house arrest while on recognizance awaiting trial, that issue was thoroughly canvassed by counsel in their sentencing submissions, the Crown opposing such credit. The judge pronounced sentence immediately after those submissions. I am satisfied that the judge was alive to the issue. In any event, given the circumstances of the offence and the offender, I am not persuaded that resulting sentence is inappropriate.
[5] Mr. Tattrie had a lengthy record with a history of a prior violent offence as well as several breaches of probation and two breaches of the conditional sentence. Particularly aggravating is the breach of the conditional sentence subsequent to the assault of Mr. McNutt. I do not accept the appellant’s submission that the 12 month sentence for the assault is excessive for this offender.
[6] While I would grant leave to appeal sentence, I would dismiss the appeal with respect to both conviction and sentence.
Bateman, J.A.
Concurred in:
Roscoe, J.A.
Hamilton, J.A.