R. v. Bandesha (B.S.), (2013) 556 A.R. 1

• Judge: Côté, Rowbotham and McDonald, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: July 02, 2013
• Citations: (2013), 556 A.R. 1;2013 ABCA 255

R. v. Bandesha (B.S.) (2013), 556 A.R. 1; 584 W.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AU.005

Her Majesty the Queen (appellant) v. Balsher Singh Bandesha (respondent)

(1301-0052-A; 2013 ABCA 255)

Indexed As: R. v. Bandesha (B.S.)

Alberta Court of Appeal

Côté, Rowbotham and McDonald, JJ.A.

July 2, 2013.

Summary:

A woman chose to marry someone other than the man picked by her father. Her uncle and three of the woman's cousins, including the 32 year old accused, attacked the woman. She was pushed, kicked, beaten and had hair pulled out. The beating was inflicted to coerce the woman into marrying the man chosen for her. The ringleader (uncle) was sentenced to 90 days' imprisonment. The accused, a resident of Canada for 10 years but not a citizen, faced deportation and trouble entering the United States (he was a truck driver) if convicted of assault causing bodily harm. The trial judge imposed a conditional discharge. The Crown appealed.

The Alberta Court of Appeal allowed the appeal and substituted a net sentence of 84 days' imprisonment.

Criminal Law - Topic 4431

Procedure - Verdicts - Discharges and dismissals - Conditional discharge in lieu of conviction - A woman chose to marry someone other than the man chosen for her - Her uncle and three of her cousins, including the 32 year old accused, beat the woman to coerce her into marrying the man chosen for her - She was pushed, kicked, beaten and had hair pulled out - The ringleader (uncle) was sentenced to 90 days' imprisonment - The accused, a resident of Canada for 10 years but not a citizen, faced deportation and trouble entering the United States (he was a truck driver) if convicted of assault causing bodily harm - The trial judge granted the accused a conditional discharge - The Alberta Court of Appeal allowed the Crown's sentence appeal - Personal circumstances of the accused, including deportation, were to be considered when imposing a sentence - However, such circumstances could not overrule proportionality and the sentence imposed had to fit the crime and the offender - A conditional discharge was unfit and not within the acceptable sentencing range - Immigration consequences could not render an unfit sentence fit - Denunciation and proportionality required a conviction - Group assaults were more serious than one-person assaults - The court substituted a sentence of 90 days' imprisonment, less one-to-one credit for six days of pre-trial custody - The court felt constrained from imposing a sentence higher than that imposed on the uncle - A request that the 84 day go forward sentence be served intermittently was denied.

Criminal Law - Topic 5664

Punishments (sentence) - Imprisonment and parole - Intermittent imprisonment - [See Criminal Law - Topic 4431 ].

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See Criminal Law - Topic 4431 ].

Criminal Law - Topic 5835.1

Sentencing - Considerations on imposing sentence - Effect of conviction on entry into other countries - [See Criminal Law - Topic 4431 ].

Criminal Law - Topic 5840

Sentencing - Considerations on imposing sentence - Prospective deportation of convict - [See Criminal Law - Topic 4431 ].

Criminal Law - Topic 5846.9

Sentencing - Considerations on imposing sentence - Group activity - [See Criminal Law - Topic 4431 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 4431 ].

Criminal Law - Topic 5883

Sentencing - Sentence - Particular offences - Assault causing bodily harm - [See Criminal Law - Topic 4431 ].

Cases Noticed:

R. v. Ly (T.Q.) (2013), 441 N.R. 375; 544 A.R. 40; 567 W.A.C. 40; 2013 SCC 15, refd to. [para. 4].

R. v. Pham - see R. v. Ly (T.Q.).

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 11].

R. v. Arcand - see R. v. J.L.M.A.

R. v. E.B.C. (2005), 363 A.R. 111; 343 W.A.C. 111; 2005 ABCA 61, refd to. [para. 12].

R. v. Hennessey (S.W.) et al. (2010), 490 A.R. 35; 497 W.A.C. 35; 2010 ABCA 274, leave to appeal refused (2011), 426 N.R. 400 (S.C.C.), refd to. [para. 12].

R. v. MacFarlane (1976), 55 A.R. 222 (C.A.), refd to. [para. 14].

R. v. MacIntyre and Liron (1992), 135 A.R. 166; 33 W.A.C. 166 (C.A.), refd to. [para. 19].

R. v. A. (1976), 1 A.R. 348 (C.A.), refd to. [para. 25].

Authors and Works Noticed:

Ashworth, Andrew, Sentencing and Criminal Justice (5th Ed. 2010), pp. 163, 164 [para. 20].

Counsel:

B.R. Graff, for the appellant;

A.A. Sanders, for the respondent.

This appeal was heard on July 2, 2013, before Côté, Rowbotham and McDonald, JJ.A., of the Alberta Court of Appeal.

On July 2, 2013, the following memorandum of judgment was delivered orally by Côté, J.A., and filed on August 6, 2013.