Provincial Court

PROVINCIAL COURT OF NOVA SCOTIA

                             Citation: R. v. Cooper, 2015 NSPC 3

Date: 2015-01-22

Docket:  2488960, 2474927

Registry: Pictou

Between:

Her Majesty the Queen

v.

Ashley Dawn Cooper

SENTENCING DECISION

By the Court:

[1]             The court has for sentencing Ashley Dawn Cooper.  Ms. Cooper is before the court to be sentenced for two counts; one an indictable charge of unlawfully entering a dwelling; the other a summary charge of uttering a threat to burn property.

[2]             The facts are that on 22 June 2012, just past midnight, RCMP were called to a residence in Linacy, Pictou County, Nova Scotia.  The homeowner, a Ms. Brown, reported that Ms. Cooper was trying to break inside. 

[3]             The police made an immediate patrol in response to that call.  While en route, police were notified by their dispatcher that Ms. Cooper had a knife.  When police arrived at the residence in Linacy, they found Ms. Cooper outside.  They located a steak knife stuck into the ground.  Ms. Cooper displayed strong signs of impairment by alcohol.

[4]             Ms. Brown reported that Ms. Cooper had been phoning her constantly.  When police inquired how this tempest arose, Ms. Brown revealed that her fiancé, a Mr. Gillingham, had been involved recently in an intimate relationship with Ms. Cooper.  Ms. Brown admitted to police that she had obtained Mr. Gillingham’s password to access his Facebook account, and, having accessed the account, had attempted to engage Ms. Cooper in a social-networking conversation to find out how far things had gone.

[5]             Ms. Brown reported to police that Ms. Cooper had said that she would barge the door down; she stated that she had pushed Ms. Cooper away and Ms. Cooper fell down the steps.  Ms. Brown told police that, at that point, re-entered her home and locked the door. 

[6]             Ms. Brown stated to police that she could see Ms. Cooper holding a knife, scraping the knife along a window and attempting to use it as a shim to open the door.

[7]             Ms. Cooper told Ms. Brown “I am going to slit your throat and fucking kill you.”  Eventually Ms. Cooper was able to get the door open.  She pushed the door open, and stuck her foot inside.  Ms. Brown was able to hold the door shut until the police arrived.  Ms. Brown had her small child in the home.

[8]             Ms. Cooper was released from custody later that morning at around 9:40 a.m. on a promise to appear and subject to terms in a form 11.1 undertaking.

[9]             Ms. Cooper was described by police as being uncooperative, angry and difficult in the beginning; however, she finally did calm down.  The officer who released Ms. Cooper had her recite her bail conditions as set out in the form 11.1 undertaking; one of the conditions was that Ms. Cooper not contact or communicate with Ms. Brown in any way.  Ms. Cooper refused to be driven home by police.

[10]        Police were contacted later that same day by Ms. Brown.  Ms. Brown advised police that she had received a number of harassing telephone calls from Ms. Cooper.  During one of those calls, Ms. Cooper stated:  “I will burn your house down.  You fucked my shit up.” 

[11]        I have reviewed in detail the presentence report before the court.  Ms. Cooper comes before the court as a first-time offender.  The presentence report describes Ms. Cooper’s chaotic upbringing. In the third paragraph of the presentence report, the author of the report states as follows:

The subject described her childhood as being “miserable, tormented, scary and she felt preyed on”.  She stated that she did not feel protection from her family and self-reported sexual abuse as well as being medicated and recorded without her permission.  Ms. Cooper explained her mother was not home often and she was left in the care of Mr. Gordon Cooper.  She explained after reporting the same, she was placed into foster care at 13 years of age.  She recalled her mother struggling with her mental health as a result of the same which Ms. Cooper indicated lead to her own struggle, ultimately attempting suicide.”  Ms. Cooper noted she stayed for approximately one month each at the Bridges Program and the Janus Program.  She stated she was then placed into foster care with Ms. Wendy Foley.  The subject advised, after one month in the foster home, she was returned to the care of Ms. Sheila and Mr. Gordon Cooper.  According to the offender, her parents never separated.  Ms. Cooper also self-reported experiencing physical abuse “quite a bit”.

[12]        Ms. Cooper has held a number of what appear to have been minimum-wage jobs for short periods of time.  She left school early, appears to have at least started grade 10, and has attempted to complete a GED Program.

[13]        She currently has no form of income.  She has been involved in the drug culture for some period of time involving the use of cannabis, bath salts, as well as cocaine.  Her use of bath salts lasted for approximately one year; according to Ms. Cooper’s testimony, which I heard a few minutes ago, and according to the presentence report, Ms. Cooper was under the influence of bath salts at the time of the commission of these offences.

[14]        Ms. Cooper has aspirations to pursue a career in either personal styling or music; Ms. Cooper has proposed to the court a plan that would have her released from custody and living with her parents, at least for an initial period of time.

[15]        It has been suggested to the court by defence counsel that the core issue for the court to consider is one of counselling.  In fact, statutorily the core issue for the court to consider at a sentencing hearing is the fundamental purpose of sentencing, which is proportionality.  A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[16]        The s. 349 offence, in particular, was gravely serious in my view.  It involved Ms. Cooper attempting to force her way and, indeed, entering partially into Ms. Brown’s private home.  Ms. Cooper went there to confront Ms. Brown; after Ms. Brown made the completely lawful and reasonable decision not to admit Ms. Cooper to her residence, Ms. Cooper used force, armed with a knife, to attempt to gain entrance.

[17]        Ms. Cooper used a steak knife in attempting to shim open the door to Ms. Brown’s residence.  She displayed that knife in a menacing fashion and threatened to cut Ms. Brown’s throat. 

[18]        In my view, this offence demonstrates a high degree of lethality.  To characterize this as has been done here today as “just a foot in the door” is a reductive analysis of the facts that bears no relationship to reality.  This was a serious offence for which Ms. Cooper was solely responsible that gave rise to an extremely high risk of lethality, and so an extremely serious offence for which Ms. Cooper was solely responsible. 

[19]        I agree with the prosecutor that the uttering-threats charge was extremely serious as Ms. Cooper had only just been released from custody by police when she telephoned Ms. Brown and threatened to burn down her property.  The protection of Ms. Brown was the entire focus of that form 11.1 undertaking and Ms. Cooper immediately acted contrary to the clear intent of the undertaking that she signed.

[20]        Ms. Cooper was AWOL on the day set for her trial; the court issued a warrant and she was taken into custody on 4 September 2014.  She has been on remand since.

[21]        As our Court of Appeal outlined in R v. Cromwell,[1] an extensive period of time being AWOL from the process of the court is a factor that the court may take into account in ascertaining whether an offender might be a good candidate for a community based sentence, a type of sentence which typically obligates the offender to show up where and when ordered by the court or a sentence supervisor.

[22]        Neither of the offences before the court today is excluded from the conditional-sentencing regime.  As pointed out correctly by defence counsel, the amendments to section 742.1 of the Code that resulted in section 349 offences, when prosecuted by indictment, being excluded from the conditional sentencing regime, did not come into effect until 20 November 2012 in virtue of SI/2012-48.  Accordingly, neither of the offences before the court is excluded from the conditional-sentencing regime.

[23]        I am conscious, as well, that the court must apply the principles of restraint.  The court must be mindful of the fact that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; the court must consider, as well, that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[24]        However, it is clear to the court that among the major purposes of sentencing are the denunciation of unlawful conduct, and the deterrence of the offender and other persons from committing offences.  Yes, rehabilitation must always factor into the making of a sentence, particularly for young adults; however, the court must be sure to  provide a sense of reparation for harm done to victims and to the community, and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

[25]        There is no victim impact statement before the court; nevertheless, I find that the court might infer reasonably from the circumstances that Ms. Brown was terrified by the threat to her personal safety posed by Ms. Cooper

[26]        I am cognizant, as well, of the impact that offences of this nature have on the sense of public safety.  That was outlined by Beveridge J. when sitting as a judge of the Supreme Court in R. v. Stewart.[2]  Offences that are tantamount to home invasions instill in the public a sense of fear as the home is seen no longer as a refuge or sanctuary or a safe harbour; accordingly, the court must take firm steps to deter not only Ms. Cooper but to deter others and to send a strong message of deterrence so that persons contemplating resolving interpersonal conflict through resort to violence, threats of violence and home invasion will understand that the consequences will be heavy. 

[27]        I apply the principle set out in para. 718.2(b) of the Code, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. 

[28]        Mr. McNeill has helpfully referred to R. v. Caverley.[3]  That very recent sentencing decision out of this judicial centre involved two individuals who had been admitted to a home in Trenton where they proceeded to damage contents of the homeowner in a revenge-fueled rampage; they were motivated to do so because of the belief that the homeowner had been intimate with the common-law partner of one of the marauders.  Their actions were without resort to knives or threats of death and did not involve forced entry into the residence of the homeowner.  I imposed short penitentiary terms for each of those offenders.  Ms. Cooper’s conduct was, in my mind, more serious, as she used a knife, gained entrance by force, and threatened her target with death.

[29]         Ms. Cooper has no prior record.  I am mindful that the court must not impose a sentence that would crush the prospect of rehabilitation; however, given the seriousness, the great seriousness of these offences and the high risk of lethality, I have determined that sentences exceeding a term of two years must be imposed, so that a conditional sentence is barred by statute.

[30]        First of all, in relation to the unlawfully-in-a-dwelling charge, the court would have imposed a sentence of twenty-eight (28) months plus one (1) day imprisonment; however, applying the principles set out by the Supreme Court of Canada in R. v. Carvery,[4] I do find it appropriate to give Ms. Cooper seven (7) months credit for the period of time that she has spent on remand.  I reckon that to be 140 days on remand; therefore time and a half credit would be 210 or the equivalent of seven (7) months. 

[31]        And so, in relation to the s. 349 charge, the sentence of the court will be twenty-one (21) months plus one (1) day.  The court will order and direct that the warrant of committal as well as the information be endorsed in accordance with the provisions of the Truth in Sentencing Act, but for the remand time, the sentence for the s. 349 count would have been twenty-eight (28) months plus one day.

[32]        In relation to the uttering threats charge, which is a separate and distinct offence, the court imposes a sentence of three (3) months to be served consecutively, for a total sentence of twenty-four (24) months plus one (1) day or two (2) years plus one (1) day.

[33]        The court will sign a primary designated offence DNA collection order in relation to the s. 349 count.

[34]        In relation to the section s. 349 count, the court orders, as well, that Ms. Cooper be prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition and explosive substance beginning today’s date and running for ten (10) years plus twenty-four (24) months and one (1) day and also that Ms. Cooper be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

[35]        These offences occurred before the coming-into-force date of the provisions making mandatory the imposition of victim-surcharge amounts.  I am satisfied that the imposition of victim surcharge amounts would work an undue  hardship on Ms. Cooper and the court declines to impose them.

[36]        Although not sought, I do find that it is necessary that the court order and direct pursuant to the provisions of sub-section 743.2(1) of the Criminal Code that, while in custody, Ms. Cooper is to have no contact or communication with Ms. Samantha Brown, directly or indirectly.

Atwood,  JPC