C.A.C. No. 103795
NOVA SCOTIA COURT OF APPEAL
Cite as: R. v. Powell, 1994 NSCA 204
Clarke, C.J.N.S.; Hart and Matthews, J.J.A.
BETWEEN:
HER MAJESTY THE QUEEN ) Kenneth W. F. Fiske, Q.C.
) for the Appellant
Appellant )
- and - )
) Patricia H. Hutton
) for the Respondent
RONALD JOSEPH POWELL )
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Respondent ) Appeal Heard:
) October 4, 1994
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) Judgment Delivered:
) October 4, 1994
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THE COURT: Appeal dismissed from suspension of sentence for three years with conditions for aggravated assault (s. 268), per oral reasons for judgment of Clarke, C.J.N.S., Hart and Matthews, JJ.A. concurring.
C.A.C. No. 103795
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
HER MAJESTY THE QUEEN )
)
Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
RONALD JOSEPH POWELL )
) CLARKE, C.J.N.S.
) (Orally)
Respondent )
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The reasons for judgment of the Court were delivered orally by:
CLARKE, C.J.N.S.:
The Crown seeks to appeal, with leave, the sentence imposed on the respondent by Judge Gibson of the Provincial Court on one count of aggravated assault contrary to s. 268 of the Criminal Code.
On Saturday evening, October 11, 1992, Debbie Hannan, the mother of the respondent, and her boyfriend, Gerald Dionne, attended a dance at Lawrencetown, as did the respondent. About a quarter to one on Sunday morning Ms. Hannan and Mr. Dionne left the dance with Kerri Murphy who is the nine year old daughter of the respondent. They and the respondent met in the parking lot. All three adults had been drinking.
The respondent believed Ms. Hannan and Mr. Dionne intended to take his daughter and drive to Moncton where Ms. Hannan resided. Ms. Hannan had custody of the respondent's daughter. The ensuing argument escalated first to a shoving match and then a fist fight between Mr. Dionne and the respondent. Mr. Dionne suffered bruises and cuts, the most serious of which required four stitches.
The respondent was charged with aggravated assault contrary to s. 268. On November 16, 1993, Judge Gibson found the respondent guilty. On March 8, 1994, he suspended the passing of sentence for three years with conditions that the respondent attend for assessment and counselling with emphasis on anger management and such other psychological and psychiatric problems, all as the probation officer may direct. An additional condition is that the respondent must not drink any alcoholic beverage for one year.
At the time of his sentencing the respondent was unemployed, on probation for an earlier offence and had a record of convictions which included several assaults.
While conceding the assault on Dionne is more akin to one causing bodily harm than aggravated assault, the Crown contends that having regard for the nature of the offence and the circumstances of the respondent the sentence inadequately reflects the element of deterrence.
Relying on the general observations of this Court in R. v. Perlin (1977), 23 N.S.R. (2d) 66 at 68, that deterrence for crimes of violence calls for imprisonment, unless the case be exceptional, the Crown urges that a custodial sentence should be imposed on the respondent.
The lengthy and considered remarks made by Judge Gibson at sentencing reveal that he did not arrive at his decision lightly or without detailed consideration, both of Perlin and other relevant judgments of this Court. He noted, as most aggravating, the record of the respondent and the fact that he was then on probation. Mitigating factors found by the trial judge included the fact that these were minor injuries and they arose out of an argument among family members, all of whom were drinking.
Judge Gibson said:
... And so while I think that generally I would be inclined to a period of incarceration in the range that the Crown would suggest and the cases would seem to point me in that direction, it seems to me that it may be for purposes of general and specific deterrence, but more clearly specific deterrence that you might be better deterred from this type of activity by virtue of a suspended sentence in as much as it would hang over your head. You wouldn't be beyond this matter. It still would be open to the Court to revisit this issue of sentencing if you were to breach probationary conditions or commit an offence. And so I think I'm going to take something of a leap of faith here. I will avoid maybe the cookie cutter approach of simply handing out the usual sentence of incarceration and suspend the passing of sentence in this particular case. The price, of course, for doing that will be a lengthy period of probation which I would fix at three years. So this matter will hang over your head for three years. Not many individuals like to be bound by a probationary order that's that lengthy. They're subject to being recalled to the Court if the Courts order.
Judge Gibson obviously considered that, in the circumstances, this was the best hope for the reformation and rehabilitation of the respondent. The suspension of sentence for three years will either be a rigorous ordeal for the respondent resulting in his return to court and potential incarceration for breach of probation, or else it will bring about a positive change in his life and manner of living. Such has been recognized by this Court in several of its decisions of which the observations of Hart, J.A. in R. v. Thompson (1983), 58 N.S.R. (2d) 21 at 24 is a good example.
We are unable to conclude that Judge Gibson committed reversible error or, upon a review of the record and his reasons, that the sentence he imposed is not fit.
While we grant leave to appeal, we dismiss the appeal.
C.J.N.S.
Concurred in:
Hart, J.A.
Matthews, J.A.