Date:19980319 Docket: C.A.C. 140778
NOVA SCOTIA COURT OF APPEAL
Cite as: R. v. Hall, 1998 NSCA 90
Freeman, Hart, Cromwell, JJ.A.
BETWEEN:
ANDREW ROY HALL )
) for the Appellant
Appellant )
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) Susan MacKay and
) Dana Giovannetti
) for the Respondent
HER MAJESTY THE QUEEN ) )
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Respondent ) Appeal Heard:
) March 19, 1998
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) Judgment Delivered:
) March 19, 1998
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ERRATUM
Cover page should read - Leonard MacKay for the Appellant
Freeman, J.A.:
The appellant John Hall has appealed his conviction for assault causing bodily harm to Jason Baird, contrary to s. 267(1)(b) of the Criminal Code, on March 24, 1996, and he has applied for leave to appeal his sentence of nine months incarceration and two years probation.
The appellant and two friends were walking south on Barrington Street in Halifax in the early morning when they passed three young men, including Jason Baird, walking north. Hall’s companion Kenneth Haggart, apparently thinking he heard something that offended him, turned and attacked Baird’s group. Hall and the second companion, Tammy Baker, took part, Hall at one point holding Baird, who was punched and kicked, suffering bruising, abrasions and a broken nose.
The issue on the conviction appeal is whether the trial judge, Judge Robert Stroud of the Provincial Court, erred in convicting on the identification evidence before him. Hall was identified in photo line-ups and/or in court by Baird and his friends, a taxi driver and the arresting officer. He did not testify; no defence evidence was called. Judge Stroud considered identification the only issue and it is clear he approached the identification evidence cautiously, concluding “there is no doubt in my mind that the individuals involved, based upon all of the evidence, were the three accused.”
We have to the necessary extent re-examined and re-weighed the evidence, bearing in mind the frailty of identification evidence, and we are satisfied that the verdict was one that a properly instructed jury, acting judicially, could reasonably have rendered. (See R. v. Yebes (1987), 36 C.C.C. (3d) 417). The conviction appeal is dismissed.
Judge Stroud characterized the incident as “senseless.” All six persons involved had been drinking, but that is not an explanation or excuse for a brutal and needless crime. Judge Stroud found that Haggart played the major role, but told Hall that “a period of incarceration is absolutely necessary to drive home to you and to the public at large” the need for denunciation and repudiation of such activity. He considered the defence submission that there should be no incarceration beyond the five months Hall spent on remand and the Crown’s recommendation of a two-year sentence. He also took into account Hall’s lengthy previous record, which included a conviction for armed robbery.
Justice Flinn, citing R. v. Shropshire (M.J.), [1995] 4 S.C.R. 227 which adopted the language of Hallett J. in R. v. Muise (D.R.) 1994, 135 N.S.R. (2d) 81, stated in R. v. Leger (1997), 160 N.S.R. (2d) 143 (C.A.) at p. 146:
. . . [S]entencing is not an exact science; it is anything but. It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of the offence and the offender. The most that can be expected of a sentencing judge is to arrive at a sentence that is within the acceptable range.”...
Taking all relevant factors into account, as did Judge Stroud, the sentence is in an appropriate range, neither inadequate nor excessive. Leave to appeal the sentence is denied.
Freeman, J.A.
Concurred in:
Hart, J.A.
Cromwell, J.A.
C.A.C. No. 140778
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
ANDREW ROY HALL
)
Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
HER MAJESTY THE QUEEN ) )
) Freeman, J.A.
) (Orally)
Respondent )
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