R. v. Cuthbert (R.B.), 2007 BCCA 585

• Judge: Finch, C.J.B.C., Levine and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 26, 2007
• Jurisdiction: British Columbia
• Citations: 2007 BCCA 585;(2007), 249 B.C.A.C. 60 (CA)

R. v. Cuthbert (R.B.) (2007), 249 B.C.A.C. 60 (CA);

    414 W.A.C. 60

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. DE.013

Regina (respondent) v. Robert Bruce Cuthbert (appellant)

(CA033336; 2007 BCCA 585)

Indexed As: R. v. Cuthbert (R.B.)

British Columbia Court of Appeal

Finch, C.J.B.C., Levine and Lowry, JJ.A.

November 28, 2007.

Summary:

A jury found the accused guilty of attempting to murder his former wife, discharging a firearm with intent to wound his former wife's common law husband and possessing a weapon for a purpose dangerous to the public peace. The accused, after receiving two years' credit for pretrial custody, was sentenced to concurrent sentences of 10 years' imprisonment for discharging the firearm, 10 years' imprisonment for the attempted murder and three years' imprisonment for the possession charge. The accused appealed the convictions. The Crown conceded that the accused should not have been convicted of the possession charge based on the rule against multiple convictions.

The British Columbia Court of Appeal, in a decision reported at 240 B.C.A.C. 182; 398 W.A.C. 182, set aside the conviction for possession of a weapon for a dangerous purpose but otherwise dismissed the appeal. The accused appealed the sentence and sought to introduce new evidence.

The British Columbia Court of Appeal refused to introduce the new evidence and dismissed the appeal.

Criminal Law - Topic 5812.1

Sentencing - Sentencing procedure and rights of the accused - Medical or psychiatric evidence - An accused, after receiving credit for pretrial custody, received concurrent sentences of 10 years' imprisonment for attempting to murder his former wife and discharging a firearm with intent to wound his former wife's common law husband - The accused appealed, asserting that although the jury rejected the defence of non-insane automatism, the trial judge should have considered the psychiatric evidence adduced in support of the defence in determining the appropriate sentence - The British Columbia Court of Appeal rejected the assertion, stating that it could not see how the trial judge could be said to have erred in not giving effect to that evidence when the jury did not accept it - The trial judge heard the evidence and formed his own opinion as to the accused's mental state at the time of the offences, as expressed in his reasons - There was ample evidence to support that conclusion - See paragraphs 41 to 45.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - The accused was convicted of attempting to murder his former wife (Robinson) and discharging a firearm with intent to wound Robinson's common law husband (Campbell) - The accused attended and forcibly entered Robinson's home with a sawed-off shotgun intending to kill her - He was motivated by hatred and an unfounded belief that Robinson was at the root of his estrangement from his daughter - The accused shot Campbell as Campbell attempted to intervene to protect Robinson - Campbell suffered severe personal injuries and was left with a permanent residual disability - Robinson, Campbell and the daughter fled when the gun malfunctioned - The sentencing judge characterized the offences as an abuse of a former spouse which was an aggravating factor similar to that codified in s. 718(2)(a)(ii) of the Criminal Code - The sentencing judge gave two years' credit for pretrial custody and sentenced the accused to concurrent sentences of 10 years' imprisonment on each offence - The British Columbia Court of Appeal affirmed the sentence - The judge correctly emphasized denunciation and deterrence as the primary sentencing objectives and properly regarded rehabilitation as of lesser importance - See paragraphs 50 to 60.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - An accused, after receiving credit for pretrial custody, received concurrent sentences of 10 years' imprisonment for attempting to murder his former wife (Robinson) and discharging a firearm with intent to wound Robinson's common law husband (Campbell) - The accused appealed, asserting that he should have been given credit, on a two for one basis, for the pre-trial time that he spent on judicial interim release - The conditions of his bail included a six p.m. to six a.m. curfew, an injunction to stay away from his daughter, Robinson and Campbell, and a requirement that he remain within a 1.6 km radius of his residence - The British Columbia Court of Appeal stated that a flexible approach respecting credit for pretrial bail conditions should be adopted - A sentencing judge could treat bail time on stringent conditions as a mitigating factor - However, the sentencing judge here did not err in giving credit only for time served in custody - The accused's ability to carry on a normal life while on bail, although not complete, was far removed from what he would have experienced in custody - See paragraphs 28 to 40.

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - [See Criminal Law - Topic 5831.9 ].

Criminal Law - Topic 5903

Sentence - Discharge of firearm with intent - [See Criminal Law - Topic 5831.9 ].

Criminal Law - Topic 6212

Sentencing - Appeals - Variation of sentence - Considerations - Rehabilitation of accused pending appeal - An accused, after receiving credit for pretrial custody, received concurrent sentences of 10 years' imprisonment for attempting to murder his former wife and discharging a firearm with intent to wound his former wife's common law husband - The accused appealed and requested that the court consider his post-sentence conduct - The evidence demonstrated that the accused had been a compliant and polite inmate and that he had successfully completed the National Moderate Intensity Family Violence Prevention Program - The British Columbia Court of Appeal refused to consider the evidence - The evidence was not relevant because it did not address the need for deterrence and denunciation - Further, the evidence could not reasonably be expected to have affected the sentence imposed - The sentencing judge was well aware of the accused's prior good behaviour and that his conduct on the day of the offences was out of character with his conduct generally - See paragraphs 46 to 49.

Criminal Law - Topic 6218

Sentencing - Appeals - Variation of sentence - Evidence on appeal - Fresh evidence - [See Criminal Law - Topic 6212 ].

Cases Noticed:

R. v. Mills (D.J.) (1999), 119 B.C.A.C. 284; 194 W.A.C. 284; 133 C.C.C.(3d) 451; 1999 BCCA 159, refd to. [para. 32].

R. v. Perreault (D.J.) (2005), 211 B.C.A.C. 253; 349 W.A.C. 253; 2005 BCCA 226, refd to. [para. 34].

R. v. Downes (C.) (2006), 208 O.A.C. 324; 79 O.R.(3d) 321 (C.A.), agreed with [para. 35].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 42].

R. v. Lévesque (R.) (2000), 260 N.R. 165; 148 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 48].

R. v. Haj-Ahmed (G.S.), [2007] B.C.A.C. Uned. 36; 2007 BCCA 143, refd to. [para. 53].

R. v. Johnson (B.) (1998), 116 B.C.A.C. 279; 190 W.A.C. 279; 131 C.C.C.(3d) 274 (C.A.), refd to. [para. 53].

R. v. Heddle (S.T.) (1997), 88 B.C.A.C. 208; 144 W.A.C. 208 (C.A.), refd to. [para. 53].

R. v. Bagga (H.S.) (1991), 2 B.C.A.C. 17; 5 W.A.C. 171 (C.A.), refd to. [para. 54].

R. v. Burton (N.D.) (1994), 51 B.C.A.C. 180; 84 W.A.C. 180 (C.A.), refd to. [para. 54].

R. v. Jiany-Yaghooby (M.K.) (1998), 113 B.C.A.C. 168; 184 W.A.C. 168 (C.A.), refd to. [para. 54].

R. v. Siu (H.K.M.) (1998), 114 B.C.A.C. 115; 186 W.A.C. 115 (C.A.), refd to. [para. 54].

R. v. McLeod (M.S.) (2002), 169 B.C.A.C. 157; 276 W.A.C. 157 (C.A.), refd to. [para. 54].

R. v. Joseph (J.C.) (2003), 183 B.C.A.C. 155; 301 W.A.C. 155 (C.A.), refd to. [para. 54].

R. v. Dennis (R.F.) (2005), 218 B.C.A.C. 67; 359 W.A.C. 67; 2005 BCCA 475, refd to. [para. 54].

R. v. Edwards (D.A.); R. v. Levo (A.E.) (1996), 88 O.A.C. 217; 28 O.R.(3d) 54 (C.A.), refd to. [para. 57].

R. v. Portsmith (R.W.) (1995), 68 B.C.A.C. 158; 112 W.A.C. 158 (C.A.), refd to. [para. 57].

R. v. McCulloch (D.I.) (2001), 153 B.C.A.C. 32; 251 W.A.C. 32; 2001 BCCA 196, refd to. [para. 57].

Counsel:

D. Christie, for the appellant;

K. Madsen, for the respondent.

This appeal was heard at Victoria, British Columbia on September 26, 2007, by Finch, C.J.B.C., Levine and Lowry, JJ.A., of the British Columbia Court of Appeal. Finch, C.J.B.C., delivered the following reasons for judgment for the court on November 28, 2007.