R. v. Diggs (K.J.), (2004) 226 N.S.R.(2d) 203 (CA)

• Judge: Saunders, Oland and Hamilton, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 23, 2004
• Jurisdiction: Nova Scotia
• Citations: (2004), 226 N.S.R.(2d) 203 (CA);2004 NSCA 16

R. v. Diggs (K.J.) (2004), 226 N.S.R.(2d) 203 (CA);

 714 A.P.R. 203

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. OC.001

Kenneth Joseph Diggs (appellant) v. Her Majesty the Queen (respondent)

(CAC 205749; 2004 NSCA 16)

Indexed As: R. v. Diggs (K.J.)

Nova Scotia Court of Appeal

Saunders, Oland and Hamilton, JJ.A.

February 4, 2004.

Summary:

The accused was charged summarily with assault and breach of a probation order.

The Nova Scotia Provincial Court, in a decision not reported in this series of reports, convicted the accused and sentenced him to one year's custody on each count consecutive to any time then being served, plus three years' probation. The accused appealed.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, allowed the accused's appeal from sentence and reduced the sentence to three months' custody for assault, nine months' consecutive imprisonment for breach of probation and three years' probation. The accused appealed his conviction and his sentence.

The Nova Scotia Court of Appeal dismissed the appeal.

Criminal Law - Topic 5861

Sentence - Assault - The accused arrived at the front door of his former common law partner (Lee) - He was in an angry and confrontational mood - He challenged Lee's declared refusal to allow their young son to travel with the accused when he did not have a licence or registration or insurance on his vehicle - The accused struck Lee in the chest area and grabbed her wrist, scratching it - The accused was on probation at the time for assaulting another common law partner - The accused was convicted of assault and breach of a probation order (the Crown had proceeded summarily) - It was the eighth time that the accused had victimized Lee - He had an extensive record for violence, including previous spousal assaults, assaults on police officers and numerous breaches of probation and undertakings - The Nova Scotia Court of Appeal affirmed a sentence of three months' imprisonment for assault, nine months' consecutive imprisonment for breach of probation and three years' probation - See paragraphs 15 to 20.

Criminal Law - Topic 5898

Sentence - Breach of probation - [See Criminal Law - Topic 5861 ].

Cases Noticed:

R. v. Kennie (G.D.) (1993), 121 N.S.R.(2d) 91; 335 A.P.R. 91 (C.A.), refd to. [para. 8].

R. v. Landry (T.) (2003), 214 N.S.R.(2d) 229; 671 A.P.R. 229; 2003 NSCA 44, refd to. [para. 8].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 9].

R. v. Francis (M.A.) (2001), 190 N.S.R.(2d) 138; 594 A.P.R. 138 (C.A.), refd to. [para. 9].

R. v. Thue (J.) (1995), 134 Sask.R. 187; 101 W.A.C. 187 (C.A.), refd to. [para. 16].

R. v. Ranahan (W.) (1996), 84 B.C.A.C. 153; 137 W.A.C. 153 (C.A.), refd to. [para. 16].

R. v. Loughery (1992), 73 C.C.C.(3d) 411 (Alta. C.A.), refd to. [para. 16].

R. v. Tapp (E.) (1999), 176 Nfld. & P.E.I.R. 215; 540 A.P.R. 215 (Nfld. C.A.), refd to. [para. 16].

R. v. Morash (S.E.) (1994), 129 N.S.R.(2d) 34; 362 A.P.R. 34 (C.A.), refd to. [para. 16].

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189; 549 A.P.R. 189 (C.A.), refd to. [para. 16].

R. v. Bevis (K.C.) (2000), 188 N.S.R.(2d) 163; 587 A.P.R. 163 (C.A.), refd to. [para. 16].

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. 16].

R. v. Brown (B.J.) (2000), 189 N.S.R.(2d) 287; 590 A.P.R. 287 (C.A.), refd to. [para. 16].

Counsel:

Appellant representing himself;

Peter P. Rosinski, for the respondent.

These appeals were heard on January 23, 2004, in Halifax, Nova Scotia, by Saunders, Oland and Hamilton, JJ.A., of the Nova Scotia Court of Appeal. Saunders, J.A., delivered the following judgment for the court on February 4, 2004.