Court of Appeal

                           NOVA SCOTIA COURT OF APPEAL

Citation: R. v. Knockwood, 2009 NSCA 98

Date: 20091007

Docket: CAC 311483

Registry: Halifax

Between:

Stephen John Knockwood

Appellant

v.

Her Majesty the Queen

Respondent

Judge:                   The Honourable Justice Jamie W.S. Saunders

Appeal Heard:      September 18, 2009

Subject:                 Spousal assault. Sentencing.  Joint recommendations. Plea bargaining.  Aboriginal heritage.  Gladue principles.

Summary:             The appellant appealed his sentence of 12 months’ incarceration and two years’ probation following his conviction after trial for assault causing bodily harm to his spouse.  He said the judge erred in failing to give sufficient weight to the “joint recommendation” of counsel; failed to address his status as an aboriginal offender; failed to consider the “harsh” conditions of his pre-trial release as a mitigating factor; and, failed to consider the appropriateness of a conditional sentence.

Held:           Appeal dismissed.  This was not a true joint recommendation based on negotiation between the parties leading to a bargained guilty plea in exchange for leniency or some other concession.  The similarity in counsels’ positions when recommending sentence arose by pure coincidence.  Accordingly, the trial judge was free to depart from counsels’ submissions and order a different sentence.

The judge assessed the Gladue principles and determined that any systemic difficulties in the appellant’s aboriginal community had no application to him personally.  He had achieved considerable success in spite of the troubles in his community. 

There was no evidence presented to demonstrate actual, substantial hardship suffered by the appellant as a result of the terms of his pre-trial release.  Thus, there was nothing to take into account as a mitigating factor.

This was a vicious assault in which the appellant spouse was choked, beaten, bruised and bitten.  The appellant had already been convicted for spousal assault.  At the time of this offence he was bound by both a Recognizance and a probation order for the first offence.  The judge did not err in ordering a custodial sentence.