SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Roach, 2010 NSSC 370
Date: 20101006
Docket: CRH 324726
Registry: Halifax
Between:
Her Majesty the Queen
v.
Barry Andrew Roach
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DECISION ON SENTENCING
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Judge: The Honourable Justice Peter M.S. Bryson
Heard: August 10, 11, 12, 13, 16, 19, 20, September 9, 2010
Decision
on Sentencing: October 6, 2010 (Orally)
Written Release: October 13, 2010
Counsel: E. Jane Greig, for the Crown
Kelly J. Serbu, for the Accused
By the Court:
[1] This sentencing of Barry Andrew Roach follows his conviction on six counts of a nine count indictment including aggravated assault, assault with a weapon, and unlawful confinement.
[2] I have had the advantage of written submissions from both parties as well as oral argument, and Mr. Casey’s victim impact statement. I thank counsel for the quality of their written and oral submissions. I have given all these careful consideration. The parties did not request a pre-sentence report.
[3] The relevant facts are set out in my decision of September 9, 2010 and I will not repeat them here.
[4] First of all, considering the factors set out in s. 718 of the Criminal Code, the circumstances of the offences here and the circumstances of Mr. Roach, denunciation and deterrence are of paramount importance. Also important, is the need to separate offenders from society where necessary. In my view, Mr. Roach’s age, the nature and extent of his criminal record, including convictions involving violence, and his breaches of probation, recognizance and escape from custody, all suggest that rehabilitation is of limited significance in this case.
[5] Section 718.1 of the Code requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. “Gravity of the offence” lies in the nature and comparative seriousness of the offence, in the circumstances of its commission and in the harm caused, (per Saskatchewan Court of Appeal in Keshang at para. 23). In this case, the offences are serious and Mr. Roach’s responsibility for them is undiminished. Mr. Roach taunted, threatened and tortured a much older man, and in frightening circumstances. He inflicted serious but not life threatening injuries. The victim was blameless. He did not provoke Mr. Roach . There was no issue between them.
[6] Thirdly, according to s. 718.2 of the Code, the Court must consider aggravating or mitigating circumstances. The Court must also try to impose a similar sentence for similar offenders, for similar offences, in similar circumstances.
[7] The Crown argues by analogy that this matter should be treated like a home invasion case. There is some ambiguity about what this term means. The Defence rightly points out that this is not a home invasion as defined by the Court of Appeal in Harris. In particular, the Defence says that there is simply no evidence:
1. That there was a plan to commit a home invasion robbery.
2. That Mr. Roach was armed with any offensive weapon prior to entering Mr. Casey’s home.
3. That Mr. Roach committed a break and enter or otherwise forced his way into the dwelling.
4. That Mr. Roach made any attempts to steal money or other valuable property.
[8] I accept the submissions of the Defence in this regard. However, that does not end the analysis. Although the case law referred to by the Crown is not on all fours with this case, the approach of the law to violence in the home by strangers is not irrelevant. For example, although Harris is a case of robbery and aggravated assault, it describes some aggravating circumstances that would also apply here. At para. 59 of Harris, the Court of Appeal quoted from its own 1997 decision in Fraser where at para. 33, Justice Pugsley endorsed the following comments of the Alberta Court of Appeal in Matwiy:
We are of the view that the home invasion robbery merits a higher starting point sentence than the armed robbery of a bank or commercial institution. While offences of violence are abhorrent wherever they occur, offences which strike at the right of members of the public to the security of their own homes and to freedom from intrusion therein, must be treated with the utmost seriousness. Individuals in their own homes have few of the security devices available to commercial institutions. They are often alone with little hope that help will arrive. Such offences, whether they arise in injuries or not, are almost always terrifying, traumatic experiences for the occupants and the residents, often leaving them with a total loss of any sense of security.
[9] While this is not a robbery case, the comments regarding violence in one’s own home are apposite. In para. 64 of Harris, the Court of Appeal listed aggravating circumstances some of which obtain here. In this case, I consider the following to be aggravating:
- Mr. Casey was victimized in his own home by a stranger;
- Although there was no break in, because Mr. Casey admitted Mr. Roach
and Mr. Skinner, his extension of hospitality and trust were immediately betrayed in the events that followed;
- Mr. Casey was an older man with no prior connection with Mr. Roach, who presented no threat to him, and was effectively helpless;
- There was a psychologically cruel attempt to terrorize Mr. Casey;
- The violence and injuries inflicted were not fleeting but prolonged and painful;
- The injuries resulted in permanent scarring;
- The whole experience appears to have had a serious psychological impact
on Mr. Casey.
[10] Also aggravating is that Mr. Roach was on release with respect to another matter when he committed the offences in this case. Finally, as there has been a guilty finding on Count 6 - unlawful confinement - s. 348.1 of the Code requires that the Court consider that the offence occurred in Mr. Casey’s home and was occupied by him at the time, as an aggravating circumstance. I should add that I’m not sure that adds anything to the common law, because the circumstances in this case would be aggravating in any event. I want to make it clear, I don’t think it’s a doubling up of an aggravating circumstance, it’s aggravating in and of itself.
[11] In this case, there are no mitigating circumstances.
CONCURRENT OR CONSECUTIVE
[12] Section 718.3(4) of the Code authorizes consecutive sentences where an accused is convicted of multiple offences. In its brief, the Crown advances a weak argument that sentences should be consecutive and not concurrent. That position softened during argument. The case law does not support consecutive sentences in this case. Consecutive sentences are appropriate where there is no nexus as to time, place or persons involved, (R v. Hawkes, 81 N.S.R. (2d) 156 (App. Div.)). In this case, while the offences are separate and discrete, they occurred during a continuous period at the same place with the same victim. Accordingly, all sentences will be concurrent, not consecutive.
CREDIT FOR REMAND TIME
[13] Both the Crown and the Defence agree that Mr. Roach should receive two for one credit for remand time. Section 719(3) of the Code authorizes the Court to take into account pre-trial custody when determining sentencing. According to the Supreme Court of Canada in Wust, the amount of time to be credited is a matter of discretion for the trial Judge. While two for one credit is not required, it has become at least a rule of thumb to take into account the pre-conviction deprivation of liberty of the subject. In this respect, I am mindful of the comments of Justice Laskin in R. v. Rezaie, particularly at paras. 25 and 26, as well as paras. 44 and 45 of Wust. In sum, Mr. Roach will receive credit on a two for one basis for remand time, which as of today is 14 months and 11 days. On a two for one basis, that means Mr. Roach will receive credit for 28 months and 22 days.
[14] As Justice Bateman said in Ruddick, where an offender is sentenced for a collection of offences, the Court’s overriding concern is whether the total sentence is a fit one. In Ruddick, the injuries inflicted were more serious than here. But the principal offence occurred in a bar following a dispute with the victim and the other aggravating circumstances were less serious than in this case. In Ruddick, the Court confirmed a sentence of seven years for aggravated assault and referred to its own decision in MacLean which confirmed a sentence of six years for aggravated assault. Both Ruddick and MacLean involve discrete events with less serious aggravating circumstances than in this case.
[15] In my view, a sentence of less than seven years for aggravated assault would not be within a reasonable range, taking into account the circumstances, the culpability of Mr. Roach, the injuries and the principle of treating similar offences and offenders in a similar fashion. The Defence implicitly acknowledges this with its submission that an appropriate range in these circumstances would be seven to nine years, less remand time. I should add, however, that two of the cases cited for the Defence - Matthews and Malone - involved respectively mitigating circumstances and much less serious violence. Both these cases resulted in seven year sentences. On the other hand, the Crown is looking for a sentence close to the 14 year maximum penalty for aggravated assault. In my view, taking into account all the circumstances, close to the maximum would not be appropriate, particularly since the injuries in this case, while serious, were not life threatening.
DISPOSITION
[16] Accordingly, with respect to sentence, Mr. Roach will receive a two for one credit for his remand time, which will be applied against his sentence, all of which will be served concurrently. Mr. Roach, would you please stand.
[17] AGGRAVATED ASSAULT
With respect to Count 1, s. 268, aggravated assault, Mr. Roach, normally I would consider an appropriate sentence to be ten years in a federal institution, but in this case, I am going to give you two for one credit for remand time. That amounts to seven years, seven months and eight days by my calculation.
[18] ASSAULT WITH A WEAPON
With respect to Counts 2 and 3, s. 267(a), assault with a weapon, five years on each Count. These figures I am naming now would be subject to remand time.
[19] UNLAWFUL CONFINEMENT
With respect to Count 6, s. 279(2), unlawful confinement, three years.
[20] UTTERING A THREAT
With respect to Count 7, s. 264.1(1)(a), uttering a threat, two years.
[21] FAILURE TO KEEP THE PEACE
With respect to Count 9, s. 145(3), failure to keep the peace, three months.
[22] I also grant the s. 487 DNA Order and the s. 109 Weapons Order, asked for by the Crown.
Bryson, J.