R. v. Bryan,

• Jurisdiction: Nova Scotia
• Judge: Roscoe, Saunders and Oland, JJ.A.
• Neutral Citation: 2008 NSCA 119
• Citation: (2008), 272 N.S.R.(2d) 246 (CA),2008 NSCA 119,[2008] NSJ No 569 (QL),272 NSR (2d) 246,272 N.S.R.(2d) 246,[2008] NS.J. No 569 (QL),(2008), 272 NSR(2d) 246 (CA),272 NSR(2d) 246
• Date: 17 December 2008
• Court: Court of Appeal of Nova Scotia (Canada)

R. v. Bryan (A.C.) (2008), 272 N.S.R.(2d) 246 (CA);

    869 A.P.R. 246

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. DE.048

Alan Clayton Bryan (appellant) v. Her Majesty The Queen (respondent)

(CAC 293214; 2008 NSCA 119)

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

Nova Scotia Court of Appeal

Roscoe, Saunders and Oland, JJ.A.

December 17, 2008.

Summary:

An accused convicted of the attempted murder of his pregnant common law spouse was sentenced to 15 years' imprisonment, less one year's credit for six months of pre-trial custody. The accused appealed his sentence, submitting that it was excessive, because it overemphasized denunciation and deterrence and failed to give proper weight to certain mitigating factors.

The Nova Scotia Court of Appeal dismissed the appeal.

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - General - The Nova Scotia Court of Appeal held that "the principle of parity will never trump the high level of deference paid to the proper exercise of a trial judge's broad discretion in fashioning a proper sentence" - See paragraph 43.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See first Criminal Law - Topic 5881 ].

Criminal Law - Topic 5834.1

Sentencing - Considerations on imposing sentence - Seriousness of offence - [See first Criminal Law - Topic 5881 ].

Criminal Law - Topic 5849.10

Sentencing - Considerations on imposing sentence - When maximum sentence available - The Nova Scotia Court of Appeal held that the trial judge erred in noting that the maximum sentence was reserved for the worst offender and the worst offence - Subsequent to the trial judge's decision, the "worst offender, worst offence" principle was laid to rest in R. v. Solowan (2008 S.C.C.) - The principle no longer precluded the imposition of a maximum sentence that was otherwise appropriate - See paragraph 62.

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - The accused's four months' pregnant common law spouse threatened to leave him - The accused attacked her in a rage with a 2.5 foot decorative sword, repeatedly slashing her and thrusting the blade into her abdomen - A neighbour witnessed the attack and called police - The accused admitted that but for the witness he would not have stopped - The spouse was wounded in 15 places - Her unborn baby died - She bled profusely, sustaining serious injuries to her lungs, spleen, diaphragm and bowel - Only immediate and repeated emergency surgeries saved her life - She was left with profound permanent disabilities, rendering her unemployable in her chosen field - She was forced to move out of the province to be cared for by family - She was in constant pain and required 24 hour care - The accused abused cannabis and had narcissistic personality disorder, with antisocial and personality traits - He had no prior criminal record - The accused pleaded guilty to attempted murder and was sentenced to 15 years' imprisonment, less one year's credit for six months of pre-trial custody - The accused appealed, submitting that (1) 15 years fell outside the acceptable range of sentences and (2) the sentence was excessive because the trial judge overemphasized denunciation and deterrence and failed to give adequate weight to certain mitigating factors - The Nova Scotia Court of Appeal dismissed the accused's sentence appeal - The court rejected the accused's submission that jurisprudence established a 7-12 year range for attempted murder - This was a case of near-death domestic violence where it was merely fortuitous that the spouse did not die - The sentence imposed was not unfit - Mitigating factors were not under-weighed - The accused planned to kill his wife and unborn child and came within "a hair's breadth" of doing so - The deliberate targeting of the unborn child was particularly egregious.

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - The Nova Scotia Court of Appeal held that "for a planned and deliberate attempted murder committed in the context of a domestic relationship, the proper sentence should result in a term of imprisonment ranging from 8 years to life. Unless there are truly exceptional circumstances, the sentencing starting point upon conviction for attempted murder in a domestic relationship will be 8 years." - See paragraph 60.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - The Nova Scotia Court of Appeal stated that "the Supreme Court of Canada recently reaffirmed the high level of deference paid to sentencing decisions. Crafting a sentencing order is a profoundly subjective process. The broad authority of a sentencing judge should not be interfered with lightly. We who sit on appeal are not to vary a sentence simply because we might have ordered a different one. Absent error in principle, failure to consider a relevant factor, or overemphasis of the appropriate factors, this court will only intervene to vary a sentence if we are convinced that it is not a fit sentence, in other words that it is clearly excessive or inadequate." - See paragraph 24.

Cases Noticed:

R. v. L.M. (2008), 374 N.R. 351; 231 C.C.C.(3d) 310; 2008 SCC 31, refd to. [para. 24].

R. v. Pepin (1990), 98 N.S.R.(2d) 238; 263 A.P.R. 238 (C.A.), refd to. [para. 24].

R. v. Muise (D.R.) (1994), 135 N.S.R.(2d) 81; 386 A.P.R. 81; 94 C.C.C.(3d) 119 (C.A.), refd to. [para. 43].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 24].

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. 24].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 24].

R. v. Cuthbert (R.B.) (2007), 249 B.C.A.C. 60; 414 W.A.C. 60 (C.A.), dist. [para. 25].

R. v. Siu (H.K.M.) (1998), 114 B.C.A.C. 115; 186 W.A.C. 115 (C.A.), refd to. [para. 34].

R. v. Bagga (H.S.) (1991), 2 B.C.A.C. 171; 5 W.A.C. 171 (C.A.), refd to. [para. 34].

R. v. Burton (N.D.) (1994), 51 B.C.A.C. 180; 84 W.A.C. 180 (C.A.), refd to. [para. 34].

R. v. Gould (1990), 96 N.S.R.(2d) 123; 253 A.P.R. 123 (C.A.), refd to. [para. 37].

R. v. Fleming (K.J.) (1993), 126 N.S.R.(2d) 267; 352 A.P.R. 267 (C.A.), refd to. [para. 37].

R. v. Wessell (R.G.) (1994), 129 N.S.R.(2d) 157; 362 A.P.R. 157 (C.A.), refd to. [para. 37].

R. v. Ancio, [1984] 1 S.C.R. 225; 52 N.R. 161; 2 O.A.C. 124, refd to. [para. 40].

R. v. Logan, Logan and Johnson, [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330, refd to. [para. 40].

R. v. Lysak (D.J.) (2006), 401 A.R. 14; 391 W.A.C. 14 (C.A.), refd to. [para. 61].

R. v. Tan, [2008] O.J. No. 3044, refd to. [para. 61].

R. v. Nippard (L.) (1993), 106 Nfld. & P.E.I.R. 262; 334 A.P.R. 262; 83 C.C.C.(3d) 410 (Nfld. C.A.), refd to. [para. 61].

R. v. Young (S.K.) (2004), 184 Man.R.(2d) 177; 318 W.A.C. 177 (C.A.), refd to. [para. 61].

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

Counsel:

Luke A. Craggs, for the appellant;

Dana Giovannetti, Q.C., for the respondent.

This appeal was heard on November 21, 2008, at Halifax, N.S., before Roscoe, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal.

On December 17, 2008, Saunders, J.A., delivered the following judgment for the Court of Appeal.