IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Paul, 2003 NSSC 28
Date: 20030109
Docket: CRSAT. No. 2706
Registry: Antigonish
Between:
Her Majesty the Queen
v.
Allan Michael Paul
Judge: The Honourable Justice Donald M. Hall
Heard: January 9, 2003, in Antigonish, Nova Scotia
Written Release
of Decision: February 5, 2003
Counsel: Ronald MacDonald, Esq., for the Crown
Lawrence O'Neil, Esq.,for the Defendant
By the Court: (Orally)
[1] The accused, Allan Michael Paul, is before the Court for sentencing with respect to a charge that he did on the 28th day of June, 2001, at or near Afton Reserve, in the County of Antigonish, Province of Nova Scotia, carry a weapon, to wit: a firearm for purposes dangerous to the public peace contrary to section 88(2) of the Criminal Code. Initially, the accused was charged with four counts in respect to the incident in question, including a charge of attempted murder with respect to Michael Gerard Julian. That charge, as well as two others, was abandoned and the accused pleaded guilty to the fourth count on the indictment which I just referred to.
[2] It seems that the incident arose out of an occasion when Mr. Paul, the accused, was attending a high school graduation party during the evening in question at the residence of the apparent intended victim, Mr. Julian, who is the Chief of the Afton Native Band on the Afton Reserve in this County. At the time, the accused was extremely intoxicated and apparently had become involved in an altercation with one or two other individuals which was broken up by Chief Julian. Apparently, the accused took exception to this intervention by the Chief and, as I understand the facts, he returned to his home, obtained a rifle and came back to the scene where the activities were going on, saying that he was going to kill “that wife-beater”, apparently referring to Chief Julian. He did fire the rifle on two occasions into the air but eventually he was disarmed by Chief Julian.
[3] As I indicated, the accused pleaded guilty, although the matter was scheduled for trial which was to take place at the time when the guilty plea was entered.
[4] I have had the benefit of hearing submissions by counsel and reading the pre-sentence report. As to the pre-sentence report, the best way I can describe it, is that it is not particularly encouraging although there are some positive factors there with respect to the accused.
[5] The accused is a young man twenty years of age. He has a Grade 9 education. At the present time, he is unemployed and has a rather limited employment record. Unfortunately he does have a criminal record, all of which accumulated following the offence for which he is now being sentenced. The criminal record, as far as it goes, is set out in some detail in Exhibit 1, which was introduced into evidence. The unfortunate part of the record, as I indicated, is that all of the offences occurred following the commission of the current offence. They included breaches of recognizance; breaches of conditional sentence orders and also a charge of mischief, as well as a charge of break, enter and theft under section 348.
[6] The general principles of sentencing are set out in the Criminal Code in section 718 and the following sections, and also with respect to conditional sentences, in section 742 and the following sections.
[7] Essentially, the fundamental and paramount purpose of sentencing is set out in the decision of the late Chief Justice McKinnon in R. vs. Grady, a decision of the Nova Scotia Court of Appeal, rendered in 1972 I believe. In that decision, Chief Justice McKinnon referred to or described the paramount purpose of sentencing as being the protection of the public. He went on to say that the public can best be protected by a blending of deterrence and rehabilitation of the offender; not only deterrence with respect to the individual concerned but also deterrence of a general nature, so as to send the message to the public at large, and in particular, to others who might be inclined to engage in the same or similar criminal conduct.
[8] The maximum penalty for offences under section 88 is a term of imprisonment of ten years. The sentences range, however, vary widely from periods of probation, to short terms of incarceration, to longer terms of incarceration. As well, consideration must be given with respect to the serving of the sentence in the community by way of a conditional sentence.
[9] In this instance, the Crown has submitted that a conditional sentence would not be appropriate and has suggested that the proper range for sentence is nine to twelve months in custody, plus a period of probation with conditions, as well as a firearms prohibition, which actually is mandatory in the circumstances. Defence counsel argued very strongly in favour of a conditional sentence for the accused, which Mr. O’Neil suggested should be in the nine to ten month range.
[10] There are a number of factors that must be taken into account in this instance; that is, factors relating particularly to the offence and to the accused. As pointed out by Mr. O’Neil, and in particular for the purposes of this sentencing hearing, the accused must be treated as a first time offender in that he had no criminal record prior to the commission of this offence, which occurred in June of 2001. As well, it appears that he has no history of previous antisocial behaviour prior to this incident, in particular, as I just stated, in June of 2001. The court must also consider that Mr. Paul is a young man. At the time of the commission of the offence he was just nineteen years of age, and I take it, he had just had his birthday a very short time before this event occurred. At the present time he is just twenty and one-half years of age. I also take into account the fact that he is a member of an aboriginal community, but unfortunately, as he indicated himself, his community is subject to excessive alcohol and drug consumption, and in many instances, amounting to abuse of those substances. It is also noted that in his current family circumstances he is living with his girlfriend and they are expecting a child. As I understood from the evidence of Mr. Paul, it is his intention and expectation that he and his girlfriend will remain together and he will assume the role of parent once the child arrives. He expressed concern as to his previous behavour, particularly, because of the anticipated arrival of the child and stated that he realized that it was time he straightened up.
[11] Another important aspect of Mr. Paul’s history is that he obviously had a very unhappy and problematic childhood mainly due to the treatment by his father. It appears that he was subjected to severe physical abuse at the hands of his father from the time that he was four years of age until he was seventeen. He told the court that his father was a big man of six feet three in height and weighed two hundred forty-five pounds, so I suspect that he would have been a very intimidating figure in the eyes of a small child and a young boy. Also, it was not insignificant that Mr. Paul’s parents separated when he was eleven years of age. He remained with his father and since then it seems that he has received minimal family support. I suspect that much of these factors in his background led him into the situation where he finds himself today. Its also significant in my mind that Mr. Paul has expressed remorse and shame for what he did and that he is particularly aware of the possible consequences that might have flowed had he carried out at the time what was apparently his intended purpose, that is, of disposing of Chief Julian. In his testimony, Mr. Paul expressed remorse and so forth, and I am satisfied that he was sincere in his expressions of remorse, shame and concern over his conduct.
[12] On the other hand, however, there are some negative factors. As Mr. MacDonald, Crown counsel, pointed out, this was indeed a very dangerous state of affairs. Certainly there was great danger to anyone who was in the vicinity at the time where there was a highly intoxicated, agitated and angry person who was in possession of a loaded firearm. The discharging of the rifle into the air in itself was indeed a dangerous activity. There was great risk of serious harm to any number of persons in those circumstances. I am also greatly concerned about the continued use of marijuana and alcohol following the commission of the offence by the accused. It seems that he did not learn from his experience and that his brush with having possibly taken another person’s life didn’t make a sufficient impression on him to cause him to take some action to overcome his apparent problem with alcohol and drugs. A factor that possibly is of greater concern is the history of the breaches by Mr. Paul of court imposed conditions. As noted in the record, which was acknowledged by him, there was a breach of conditions in a probation order, as well as breaches of conditions in a conditional sentence order. I believe with respect to the conditional sentence order, it was breached not just once but twice in a very short period of time. This conduct demonstrates a complete disregard on his part for the orders of the court.
[13] I have considered the principles of sentencing set out in the Criminal Code that I have referred to, as well as the cases referred to me by counsel. I am not going to review the cases nor make any specific reference to the provisions of the Code. I do, however, accept the proposition that incarceration should be imposed only when there is no other reasonable alternative in the circumstances of the particular case. Certainly, if there was any reasonable way to avoid incarceration here, that is, imprisonment, I would take that course. Unfortunately, in the circumstance of this case, I do not see a reasonable and responsible alterative to incarceration.
[14] I have come to this conclusion, particularly because of Mr. Paul’s continued use of alcohol and drugs after the event was committed and, even virtually to this day he continues to use marijuana in breach of the prohibitions of the law against such use. Although he expresses good intentions with respect to his discontinuing the use of alcohol and drugs, there is no guarantee in that respect. Indeed, my concern is that if he should fall back to his old pattern of alcohol abuse, he could well be a danger to the public. That, coupled with his previous disregard for the conditions imposed by the courts, compel me to conclude that he is not a good or suitable candidate for a conditional sentence. It is my opinion, therefore, that in these circumstances there is no appropriate alternative to a custodial sentence. However, I do not consider that a lengthy term is required. In my view, an appropriate term would be six months imprisonment coupled with a period of probation.
[15] The sentence of the court then is that the accused shall serve a term of imprisonment of six months to be followed by a period of probation of two years, during which the accused will be subject to a probation order which would include the usual terms of a probation order; that is, that he keep the peace and be of good behaviour and that he appear in court when required to do so by the court. In addition, he is to be subject to the supervision of a probation officer and is to report to the probation officer as and when required to do so by the probation officer. In addition, he is to abstain absolutely from the consumption of alcohol and non-medically prescribed drugs. He will submit to substance abuse assessment and undergo such further counselling and treatment as may be advised by an appropriate authority, including the probation officer. In addition, the accused is to be subject to a firearm prohibition for a period of ten years pursuant to section 109 of the Criminal Code.
[16] Mr. Paul, would you stand please.
[17] You understand that I very reluctantly have sentenced you to a term of six months imprisonment, and I say that I have done that reluctantly. I have explored every other possible avenue to avoid it because it is the last thing I wanted to do today. Insofar as you are concerned, I feel that you have potential to make something of your life but you do have to change your ways, and two things you have to learn is that you can’t handle alcohol nor drugs and the other is that you must respect the conditions that are imposed by the court.
[18] So, I have sentenced you to a term of six months imprisonment to be followed by a period of probation of two years subject to the conditions. I would hope that you will take advantage of the services that will be provided for you and the assistance that I would expect that a probation officer might provide to you by way of good advice and counselling. The firearms prohibition is mandatory so I imposed that. I hope you will do better in the future.
[19] I should say this, I have also noted that this occurred over a very short period of time so I expect that there is great cause for optimism that there will not be a repeat of this kind of conduct on your part.
Donald M. Hall, J.