R. v. Cook (N.), (2014) 303 Man.R.(2d) 235 (CA)

• Judge: Chartier, C.J.M., Cameron and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 05, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 303 Man.R.(2d) 235 (CA);2014 MBCA 29

R. v. Cook (N.) (2014), 303 Man.R.(2d) 235 (CA);

      600 W.A.C. 235

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. MR.020

Her Majesty The Queen (respondent) v. Norman Harold Cook (accused/appellant)

(AR 13-30-07976; 2014 MBCA 29)

Indexed As: R. v. Cook (N.)

Manitoba Court of Appeal

Chartier, C.J.M., Cameron and Mainella, JJ.A.

March 13, 2014.

Summary:

The accused was convicted of kidnapping, sexual assault, and choking to overcome resistance.

The Manitoba Court of Queen's Bench, in a decision reported at 292 Man.R.(2d) 68, sentenced the accused to nine years' imprisonment for kidnapping, 7.5 years concurrent for sexual assault and 1.5 years for choking, consecutive to the sexual assault, but concurrent to the kidnapping charge. Therefore, the total sentence was nine years, less time served in custody on remand for a go forward sentence of seven years eight months. The accused was granted leave to appeal sentence.

The Manitoba Court of Appeal dismissed the appeal, except to the extent that the accused's sentence for sexual assault was varied from 7.5 years to six years' imprisonment, concurrent to his kidnapping sentence.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - [See second Criminal Law - Topic 5904 ].

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - [See second Criminal Law - Topic 5904 ].

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - [See second and third Criminal Law - Topic 5904 ].

Criminal Law - Topic 5831

Sentencing - Considerations on imposing sentence - Retribution or punishment - The victim was walking down the street using crutches and with one arm in a cast - The accused approached her, took hold of her around her neck and dragged her a short distance to a place where he was staying - He held her in a bedroom, forced vaginal intercourse, fellatio, attempted anal intercourse and choked her - She escaped a few hours later when he fell asleep - The accused was convicted of kidnapping, sexual assault, and choking to overcome resistance - The Manitoba Court of Appeal stated that "While retribution will not be a factor in every kidnapping sentencing, depending on the severity of the kidnapping and the moral culpability of the offender, it may be considered. I accept that the judge did not err in this case by considering the principle of retribution in imposing the sentence. Retribution is a particularly relevant sentencing factor in cases where a victim is forcibly taken from the street by a stranger for the purpose of sexual assault. Such a criminal act bears a high degree of moral culpability based on the intentional risks taken by the perpetrator, the harm to a victim by it, and society's abhorrence of predatory behaviour  ..." - See paragraph 51.

Criminal Law - Topic 5834

Sentencing - Considerations on imposing sentence - Circumstances tending to increase sentence - The victim was walking down the street using crutches and with one arm in a cast - The accused (Cook) approached her, took hold of her around her neck and dragged her a short distance to a place where he was staying - He held her in a bedroom, forced vaginal intercourse, fellatio, attempted anal intercourse and choked her - She escaped a few hours later when he fell asleep - The accused was convicted of kidnapping, sexual assault, and choking to overcome resistance - The sentencing judge stated that "The aggravating factors in this situation are relatively obvious: (1) the kidnapping off of a public street of a stranger, a vulnerable woman who was obviously suffering from other injuries at the time; (2) the prolonged time of the event, several hours; (3) the nature of the sexual assault including the various attempted sexual acts and the accompanying unnecessary physical violence; (4) the choking of the victim to attempt to facilitate the sexual assault; (5) the long-term physical and psychological injuries suffered by the victim during the assault; (6) the absence of any remorse or acceptance of responsibility by Mr. Cook; and (7) the aggravation of the trauma this victim suffered by having to testify at the preliminary inquiry and trial." - On appeal, the Manitoba Court of Appeal held that the judge erred in principle in considering irrelevant matters as aggravating circumstances, namely, the absence of remorse and the trauma caused to the victim by having to testify at the preliminary inquiry and trial - However, this error did not affect the Court of Appeal's view on sentencing.

Criminal Law - Topic 5904

Sentence - Kidnapping and abduction - The Manitoba Court of Appeal discussed the sentencing range for kidnapping - See paragraphs 48 to 75.

Criminal Law - Topic 5904

Sentence - Kidnapping and abduction - The victim was walking down the street using crutches and with one arm in a cast - The accused approached her, took hold of her around her neck and dragged her a short distance to a place where he was staying - He held her in a bedroom, forced vaginal intercourse, fellatio, attempted anal intercourse and choked her - She escaped a few hours later when he fell asleep - The accused was convicted of kidnapping, sexual assault, and choking to overcome resistance - The trial judge considered the kidnapping to be the overarching charge that subsumed the sexual assault and choking, which were independent criminal offences, albeit born out of the same factual scenario - Therefore, to properly reflect the appropriate sentence for each offence the judge imposed concurrent sentences for the kidnapping and sexual assault offences, but considering the gravity of the choking offence it attracted a consecutive sentence to the sexual assault yet concurrent to the kidnapping - On appeal, the Manitoba Court of Appeal held that "The rationale of the judge to focus on the kidnapping offence as the 'overarching charge' ... was correct given the nature of the crime of kidnapping. Kidnapping is a continuing offence. It is an aggravated form of unlawful confinement. The kidnapping began when the victim was forcibly taken on Main Street. It continued throughout the major sexual assault and accompanying choking. The kidnapping did not end until the victim's unlawful confinement was over, when she escaped on her third try  ..." - Further, the sentencing judge did not err in making the sentence for the choking offence consecutive - See paragraphs 29, 30 and 89.

Criminal Law - Topic 5904

Sentence - Kidnapping and abduction - Early one morning in August 2011, the victim was walking down the street using crutches and with one arm in a cast - The accused, who was in his forties and drunk, approached her, took hold of her around her neck and dragged her a short distance to a place where he was staying - He held her in a bedroom, forced vaginal intercourse, fellatio, attempted anal intercourse and choked her - She escaped a few hours later when he fell asleep - The accused was charged and convicted after a preliminary inquiry and trial - Extensive criminal record from 1991 through 2005 including three counts of robbery - No related offences - The sentencing judge sentenced the accused to nine years' imprisonment for kidnapping, 7.5 years concurrent for sexual assault and 1.5 years for choking, consecutive to the sexual assault, but concurrent to the kidnapping charge (total sentence of nine years, less time served in custody on remand for a go forward sentence of seven years and eight months) - The Manitoba Court of Appeal dismissed the appeal except to vary the sentence for sexual assault from 7.5 to six years' imprisonment, concurrent to his kidnapping sentence - The total sentence imposed by the judge for the sexual assault offence and the overcoming resistance in committing an offence by choking was nine years, the same as for the kidnapping offence - Logically, to account for the no free ride principle, which the judge was aware of in his reasons, the sentence for the kidnapping offence, which encompassed all of the criminality of the other two offences, and more, should have been greater in aggregate, not the same - See paragraphs 76 to 94.

Criminal Law - Topic 5932

Sentence - Sexual assault - [See second and third Criminal Law - Topic 5904 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The Manitoba Court of Appeal stated that "This court has consistently taken the view that the starting point for a single major sexual assault (as defined in Sandercock [1985 Alta. C.A.] perpetrated on an adult victim by a mature accused with no criminal record and prior good character is three years' imprisonment ... . The ultimate sentence will be increased or reduced from that starting point, taking into account relevant aggravating or mitigating factors relating to the offence and the offender (s. 718.2(a) of the Code ...)" - See paragraphs 38 and 39.

Criminal Law - Topic 5957

Sentencing - Sentence - Particular offences - Attempted suffocation, choking, strangling etc. - The Manitoba Court of Appeal reviewed the sentencing range for overcoming resistence to commit an indictable offence by attempting to choke, suffocate or strangle the victim (Criminal Code, s. 246(a)) - See paragraphs 40 to 47.

Criminal Law - Topic 5957

Sentencing - Sentence - Particular offences - Attempted suffocation, choking, strangling etc. - [See second and third Criminal Law - Topic 5904 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - The Manitoba Court of Appeal referred to the standard of review on a sentence appeal - The court stated that great deference is owed by an appellate court to a judge's sentencing decision. Variation of a sentence pursuant to s. 687 of the Code is limited to the situations of the sentence being arrived at due to an 'error in principle', or it being 'demonstrably unfit' ..." - See paragraph 26.

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 6201 ].

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 14].

R. v. Sandercock (1986), 62 A.R. 382 (C.A.), refd to. [para. 16].

R. v. Sinclair (J.G.) (2010), 262 Man.R.(2d) 23; 507 W.A.C. 23; 2010 MBCA 105, refd to. [para. 20].

R. v. Traverse (L.) et al. (2008), 231 Man.R.(2d) 123; 437 W.A.C. 123; 2008 MBCA 110, refd to. [para. 20].

R. v. Blair (D.) et al. (2007), 221 Man.R.(2d) 230; 2007 MBQB 287, affd. (2008), 228 Man.R.(2d) 143; 427 W.A.C. 143; 2008 MBCA 68, refd to. [para. 20].

R. v. Beardy (J.A.) (2011), 273 Man.R.(2d) 147; 2012 MBQB 4, refd to. [para. 20].

R. v. Latreille (R.K.), [2009] B.C.T.C. Uned. 1892; 2009 BCSC 1892, refd to. [para. 20].

R. v. Wishlow (A.C.) (2013), 291 Man.R.(2d) 149; 570 W.A.C. 149; 2013 MBCA 34, refd to. [para. 24].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 26].

R. v. Ruizfuentes (H.S.) (2010), 258 Man.R.(2d) 220; 499 W.A.C. 220; 2010 MBCA 90, refd to. [para. 26].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 27].

R. v. Wozny (C.P.) (2010), 262 Man.R.(2d) 75; 507 W.A.C. 75; 2010 MBCA 115, refd to. [para. 28].

R. v. Hernandez (J.) et al., [2012] 2 S.C.R. 411; 433 N.R. 77; 324 B.C.A.C. 40; 551 W.A.C. 40; 288 C.C.C.(3d) 405; 2012 SCC 40, refd to. [para. 30].

R. v. Vu - see R. v. Hernandez (J.) et al.

R. v. Lagimodiere (S.M.E.) (2008), 231 Man.R.(2d) 261; 437 W.A.C. 261; 2008 MBCA 137, refd to. [para. 34].

R. v. Maroti (M.) (2010), 255 Man.R.(2d) 115; 486 W.A.C. 115; 2010 MBCA 54, refd to. [para. 35].

R. v. Duerksen (J.A.) (2012), 280 Man.R.(2d) 84; 548 W.A.C. 84; 2012 MBCA 41, refd to. [para. 35].

R. v. Taylor (M.A.) (2010), 262 Man.R.(2d) 43; 507 W.A.C. 43; 2010 MBCA 103, refd to. [para. 35].

R. v. G.W.R. (2011), 268 Man.R.(2d) 204; 520 W.A.C. 204; 2011 MBCA 62, refd to. [para. 35].

R. v. Price, [1990] 1 W.W.R. 37 (Man. C.A.), refd to. [para. 38].

R. v. Cameron (1991), 75 Man.R.(2d) 290; 6 W.A.C. 290 (C.A.), refd to. [para. 38].

R. v. Denny (E.L.) (1992), 81 Man.R.(2d) 264; 30 W.A.C. 264 (C.A.), refd to. [para. 38].

R. v. Leyte (S.S.) (1996), 110 Man.R.(2d) 235; 118 W.A.C. 235 (C.A.), refd to. [para. 38].

R. v. Borkowsky (H.) (2008), 225 Man.R.(2d) 127; 419 W.A.C. 127; 2008 MBCA 2, refd to. [para. 38].

R. v. J.C.L., [2009] Man.R.(2d) Uned. 24; 2009 MBCA 52, refd to. [para. 38].

R. v. J.M.F. (2009), 251 Man.R.(2d) 3; 478 W.A.C. 3; 2009 MBCA 109, refd to. [para. 38].

R. v. Geary (R.) (2010), 251 Man.R.(2d) 258; 478 W.A.C. 258; 2010 MBCA 33, refd to. [para. 38].

R. v. J.R.A. (2012), 280 Man.R.(2d) 123; 548 W.A.C. 123; 2012 MBCA 48, refd to. [para. 39].

R. v. Manowar (A.), [2010] O.A.C. Uned. 707; 2010 ONCA 871, refd to. [para. 40].

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R. v. Durack, [1989] M.J. No. 467 (C.A.), refd to. [para. 43].

R. v. Quast (S.N.) (1993), 83 Man.R.(2d) 319; 36 W.A.C. 319 (C.A.), refd to. [para. 44].

R. v. A.J.B. (2007), 220 Man.R.(2d) 8; 407 W.A.C. 8; 2007 MBCA 95, refd to. [para. 45].

R. v. D. (1984), 79 Cr. App. R. 313 (H.L.), refd to. [para. 48].

R. v. Pouliot (1985), 18 C.C.C.(3d) 566 (Que. C.A.), refd to. [para. 48].

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. 50].

R. v. Mills (D.J.) et al. (1998), 112 B.C.A.C. 283; 182 W.A.C. 283 (C.A.), refd to. [para. 53].

R. v. Li (B.) et al. (2002), 156 O.A.C. 364 (C.A.), refd to. [para. 53].

R. v. Sidhu (G.), [2013] O.A.C. Uned. 592; 2013 ONCA 719, refd to. [para. 53].

R. v. Thind - see R. v. Sidhu.

R. v. Raber and Hedch (1983), 57 A.R. 360 (C.A.), refd to. [para. 53].

R. v. Abrosimo (B.E.) (2007), 245 B.C.A.C. 180; 405 W.A.C. 180; 2007 BCCA 406, refd to. [para. 54].

R. v. Deo (H.S.) et al. (2007), 249 B.C.A.C. 167; 414 W.A.C. 167; 2007 BCCA 626, refd to. [para. 56].

R. v. Schira (M.G.) (2004) 357 A.R. 225; 334 W.A.C. 225; 2004 ABCA 369, refd to. [para. 57].

R. v. Dunseath (K.L.) (1993), 145 A.R. 284; 55 W.A.C. 284 (C.A.), refd to. [para. 57].

R. v. Walker, [1985] O.J. No. 104 (C.A.), refd to. [para. 57].

R. v. Davis (G.) et al. (1999), 117 O.A.C. 81, refd to. [para. 57].

R. v. Collins (K.D.) (1997), 209 A.R. 220; 160 W.A.C. 220 (C.A.), refd to. [para. 57].

R. v. Meigs (E.T.) (2007), 245 B.C.A.C. 102; 405 W.A.C. 102; 2007 BCCA 394, refd to. [para. 57].

R. v. Cormier (R.J.) (2012), 393 N.B.R.(2d) 118; 1017 A.P.R. 118; 2012 NBCA 76, leave to appeal dismissed (2013), 455 N.R. 398, refd to. [para. 57].

R. v. B.A. (2013), 417 Sask.R. 140; 580 W.A.C. 140; 2013 SKCA 75, refd to. [para. 58].

R. v. P.S. (2007), 223 O.A.C. 293; 2007 ONCA 299, refd to. [para. 58].

R. v. Newhook (A.C.) (2008), 276 Nfld. & P.E.I.R. 190; 846 A.P.R. 190; 2008 NLCA 28, refd to. [para. 61].

R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161, refd to. [para. 64].

R. v. Pritchard (D.M.), [2008] 3 S.C.R. 195; 381 N.R. 67; 261 B.C.A.C. 1; 440 W.A.C. 1; 2008 SCC 59, refd to. [para. 64].

R. v. Frank (D.R.) (2000), 150 Man.R.(2d) 269; 230 W.A.C. 269; 2000 MBCA 133, refd to. [para. 64].

R. v. Kematch (S.D.) et al. (2010), 251 Man.R.(2d) 191; 478 W.A.C. 191; 2010 MBCA 18, refd to. [para. 64].

R. v. Tse (Y.F.A.) et al., [2010] B.C.T.C. Uned. 1273; 2010 BCSC 1273, refd to. [para. 64].

R. v. Bermudez-Rivera (D.), [2010] O.A.C. Uned. 511; 2010 ONCA 653, refd to. [para. 66].

R. v. Reader (M.) (2008), 225 Man.R.(2d) 118; 419 W.A.C. 118; 2008 MBCA 42, refd to. [para. 83].

R. v. Matte (C.) (2012), 294 O.A.C. 242; 111 O.R.(3d) 791; 2012 ONCA 504, refd to. [para. 91].

R. v. Nguyen, 2007 ONCA 66, refd to. [para. 91].

Authors and Works Noticed:

Ruby, Clayton C., Chan, Gerald J. and Hasan, Nader R., Sentencing (8th Ed. 2012), pp. 333 to 337 [para. 24].

Counsel:

T.L. Mariash, for the appellant;

N.M. Cutler, for the respondent.

This appeal was heard on February 5, 2014, by Chartier, C.J.M., Cameron and Mainella, JJ.A., of the Manitoba Court of Appeal. Mainella, J.A., delivered the following decision for the court on March 13, 2014.