R. v. Best (C.A.), 2012 NSCA 34

• Judge: MacDonald, C.J.N.S., Beveridge and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 03, 2012
• Jurisdiction: Nova Scotia
• Citations: 2012 NSCA 34;(2012), 315 N.S.R.(2d) 243 (CA)

R. v. Best (C.A.) (2012), 315 N.S.R.(2d) 243 (CA);

    998 A.P.R. 243

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. AP.009

Her Majesty The Queen (appellant) v. Clarence Arthur Best (respondent)

(CAC 345701; 2012 NSCA 34)

Indexed As: R. v. Best (C.A.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Beveridge and Farrar, JJ.A.

April 3, 2012.

Summary:

Robson arrived uninvited at a party the accused was a guest at. Robson left the party (lived next door) when sucker punched by someone other than the accused. The party continued. Inexplicably, the accused and another guest later entered Robson's home and attacked him while he slept. Robson suffered serious injuries at the hands of the other guest. The accused inflicted no injuries. The accused was convicted of break and enter and aggravated assault. The trial judge sentenced the accused, based on his "secondary involvement", his positive pre-sentence report and the spontaneity of the attack, to a 90 day intermittent sentence followed by two years' probation. The Crown appealed the sentence.

The Nova Scotia Court of Appeal dismissed the appeal. The 90 day intermittent sentence was demonstrably unfit. Deterrence required a sentence in the 3-11 year range. Based on the mitigating factors, an appropriate sentence would have been three years' imprisonment. However, where the accused had served his intermittent sentence and was well into his probation with positive results, this was one of those rare circumstances where it was not in the interests of justice to re-incarcerate the accused.

Criminal Law - Topic 5664

Punishments (sentence) - Imprisonment and parole - Intermittent imprisonment - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5834.1

Sentencing - Considerations on imposing sentence - Seriousness of offence - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 5851

Sentence - Break and enter - Robson arrived uninvited at a party the 30 year old accused was a guest at - Robson left the party (lived next door) when sucker punched by someone other than the accused - The party continued - Inexplicably, the accused and another guest later entered Robson's home and attacked him while he slept - Robson suffered a cervical fracture and a broken jaw - The injuries were inflicted by the other guest, not the accused - The accused was convicted of break and enter and aggravated assault - The trial judge sentenced the accused, based on his "secondary involvement", his positive pre-sentence report and the spontaneity of the attack, to a 90 day intermittent sentence followed by two years' probation - The Nova Scotia Court of Appeal held that the sentence was demonstrably unfit - This was a serious offence for which denunciation and deterrence generally required "serious jail time" (3-11 years), notwithstanding the accused's lesser involvement in the beating and his positive pre-sentence report - The accused had a grade 10 education, was separated, worked intermittently cutting wood and lived with his parents, caring for his ailing father - He now abstained from drugs and alcohol and was awaiting counselling - An appropriate sentence would have been three years' imprisonment - However, where the accused had served his intermittent sentence and was well into his probation with positive results, this was one of those rare circumstances where it was not in the interests of justice to re-incarcerate the accused.

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See Criminal Law - Topic 5851 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court fully or partially served - [See Criminal Law - Topic 5851 ].

Cases Noticed:

R. v. Solowan (K.S.T.), [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, refd to. [para. 12].

R. v. A.N. (2011), 300 N.S.R.(2d) 282; 950 A.P.R. 282; 2011 NSCA 21, refd to. [para. 12].

R. v. Bernard (A.) (2011), 303 N.S.R.(2d) 384; 957 A.P.R. 384; 2011 NSCA 53, refd to. [para. 12].

R. v. Conway (M.F.) (2009), 282 N.S.R.(2d) 154; 895 A.P.R. 154; 2009 NSCA 95, refd to. [para. 12].

R. v. Markie (B.J.) (2009), 284 N.S.R.(2d) 352; 901 A.P.R. 352; 2009 NSCA 119, refd to. [para. 12].

R. v. Foster (R.J.) et al. (1997), 161 N.S.R.(2d) 371; 477 A.P.R. 371 (C.A.), refd to. [para. 15].

R. v. Goulette (L.F.) (2009), 350 N.B.R.(2d) 152; 903 A.P.R. 152; 2009 NBCA 49, refd to. [para. 15].

R. v. Joyce (K.R.) (1998), 203 N.B.R.(2d) 1; 518 A.P.R. 1 (C.A.), refd to. [para. 15].

R. v. Peciukaitis (C.), [2008] O.A.C. Uned. 777; 2008 ONCA 672, refd to. [para. 15].

R. v. Pakoo (K.G.) (2004), 190 Man.R.(2d) 133; 335 W.A.C. 133; 2004 MBCA 157, refd to. [para. 15].

R. v. W.W. (2006), 218 O.A.C. 215 (C.A.), refd to. [para. 15].

R. v. Morash (T.) (2006), 279 Sask.R. 38; 372 W.A.C. 38; 2006 SKCA 59, refd to. [para. 15].

R. v. Sharphead (G.B.) (2004), 357 A.R. 248; 334 W.A.C. 248; 2004 ABCA 338, refd to. [para. 15].

R. v. Stephenson (T.L.) (1998), 169 N.S.R.(2d) 159; 508 A.P.R. 159 (C.A.), refd to. [para. 16].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 20].

R. v. Harris (P.J.) (2000), 181 N.S.R.(2d) 211; 560 A.P.R. 211; 2000 NSCA 7, refd to. [para. 22].

R. v. Best (A.D.) (2006), 248 N.S.R.(2d) 343; 789 A.P.R. 343; 2006 NSCA 116, refd to. [para. 24].

R. v. Butler (D.A.) (2008), 270 N.S.R.(2d) 225; 865 A.P.R. 225; 2008 NSCA 102, refd to. [para. 35].

R. v. Shaw, [1977] O.J. No. 147 (C.A.), refd to. [para. 37].

R. v. Boucher (R.) (2004), 187 O.A.C. 378 (C.A.), refd to. [para. 38].

R. v. Partridge (C.S.) (2005), 238 N.S.R.(2d) 373; 757 A.P.R. 373; 2005 NSCA 159, refd to. [para. 38].

R. v. G.C.F. (2004), 189 O.A.C. 29 (C.A.), refd to. [para. 38].

Counsel:

Mark Scott, for the appellant;

Stephenson M. Robertson, for the respondent.

This appeal was heard on February 1, 2012, at Halifax, N.S., before MacDonald, C.J.N.S., Beveridge and Farrar, JJ.A., of the Nova Scotia Court of Appeal.

On April 3, 2012, MacDonald, C.J.N.S., delivered the following judgment for the Court of Appeal.