R. v. Elford (A.), (2012) 320 Nfld. & P.E.I.R. 296 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: March 27, 2012
• Jurisdiction: Newfoundland and Labrador
• Citations: (2012), 320 Nfld. & P.E.I.R. 296 (NLPC)

R. v. Elford (A.) (2012), 320 Nfld. & P.E.I.R. 296 (NLPC);

    993 A.P.R. 296

MLB headnote and full text

Temp. Cite: [2012] Nfld. & P.E.I.R. TBEd. AP.004

Her Majesty the Queen v. Andrew Elford

(2012 PCNL 1311A00381)

Indexed As: R. v. Elford (A.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

April 3, 2012.

Summary:

The accused struck Courtney and T.W. (aged 16) with a crowbar. He was charged with assault with a weapon in relation to Courtney and with assault causing bodily harm and assault with a weapon in relation to T.W. The Crown conceded that it had failed to prove that bodily harm was caused to T.W. and sought a conviction for the lesser, but included offence of assault. The accused admitted assaulting Courtney with a weapon (the crowbar), but denied that he struck him intentionally. The accused also admitted striking T.W. with the crowbar, but claimed self-defence.

The Newfoundland and Labrador Provincial Court, in a decision reported at 320 Nfld. & P.E.I.R. 262; 993 A.P.R. 262, acquitted the accused of assault causing bodily harm respecting T.W., but convicted him of the included offence of assault. The court convicted the accused of assault with a weapon respecting Courtney, holding that when he struck Courtney with the crowbar he did so intentionally. The court also convicted the accused of assault with a weapon respecting T.W., holding that the accused did not act in self-defence.

The Newfoundland and Labrador Provincial Court stayed the assault charge and sentenced the accused to a nine month conditional sentence and two years' probation. The court also imposed a DNA order and a weapons' prohibition.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5720.3

Punishments (sentence) - Conditional sentence - Considerations - The Newfoundland and Labrador Provincial Court concluded that an offender's opportunity for counselling was an important consideration in assessing where a reasonable prospect for rehabilitation existed and the need to promote it through a conditional sentence - See paragraph 19.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The 19 year old accused pleaded guilty to assaulting Courtney with a weapon and two breaches of an undertaking - He was also convicted of assaulting T.W. (age 16) with a weapon - The accused was upset over the manner that he perceived Courtney to be treating his cousin - He left his residence with a crowbar intending to confront and frighten him - He met up with him outside a Tim Hortons - He struck him four times with the crowbar - T.W. intervened and pushed the accused away - The accused then struck T.W. twice with the crowbar - One breach of undertaking related to the accused contacting Courtney and using threatening words - The second breach related to a failure to keep the peace and be of good behaviour - Low risk to reoffend - The Newfoundland and Labrador Provincial Court concluded that appropriate periods of imprisonment were nine months for the assault on Courtney, six months for the assault on T.W., one month for the breach of the no-contact undertaking and 14 days for the other breach - The assaults did not arise out of a single criminal adventure as there were two distinct victims and separate motivations - Accordingly ,the sentences should be served consecutively - Concurrent sentences would result in no penalty being imposed for the assault on T.W. - However, applying the totality/proportionality principle, an appropriate total sentence was nine months' imprisonment - The court achieved this by ordering all of the sentences to be served concurrently - This was an appropriate case for a conditional sentence - The court also imposed two years' probation and ancillary orders.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5883

Sentence - Assault with a weapon or assault causing bodily harm - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5892

Sentence - Breach or restraining order, recognizance or undertaking - [See Criminal Law - Topic 5720.4 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 1].

DPP v. Murray, [2012] IECCA 60, refd to. [para. 8].

DPP v. O'Neill, [2012] IECCA 36, refd to. [para. 9].

R. v. Wheeler (C.P.) (2011), 315 Nfld. & P.E.I.R. 25; 981 A.P.R. 25 (Prov. Ct.), refd to. [para. 14].

R. v. Molloy (S.P.) (2005), 251 Nfld. & P.E.I.R. 141; 752 A.P.R. 141; 2005 NLTD 172, refd to. [para. 14].

R. v. Wells (E.), [2011] N.J. No. 140 (Prov. Ct.), refd to. [para. 16].

R. v. D.H. (2012), 317 Nfld. & P.E.I.R. 244; 986 A.P.R. 244; 2012 NLCA 5, refd to. [para. 19].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88, refd to. [para. 24].

R. v. Ipeelee (M.) (2012), 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 25].

R. v. Briand (R.) (2010), 302 Nfld. & P.E.I.R. 67; 938 A.P.R. 67; 2010 NLCA 67, refd to. [para. 27].

R. v. Tuglavina (J.) (2011), 305 Nfld. & P.E.I.R. 265; 948 A.P.R. 265; 2011 NLCA 13, refd to. [para. 28].

R. v. Johnston (H.E.) (2011), 311 Nfld. & P.E.I.R. 129; 967 A.P.R. 129; 2011 NLCA 56, refd to. [para. 29].

R. v. Omilgoituk (H.) (2011), 316 Nfld. & P.E.I.R. 15; 982 A.P.R. 15; 2011 NLCA 77, refd to. [para. 30].

R. v. Gray, [2011] N.J. No. 231 (Prov. Ct.), refd to. [para. 34].

R. v. Murphy (D.) (2011), 304 Nfld. & P.E.I.R. 266; 944 A.P.R. 266 (N.L.C.A.), refd to. [para. 38].

R. v. Hutchings (R.) (2012), 316 Nfld. & P.E.I.R. 211; 982 A.P.R. 211 (N.L.C.A.), refd to. [para. 40].

R. v. Abel (L.J.) (2012), 318 Nfld. & P.E.I.R. 133; 989 A.P.R. 133; 2012 NLTD(G) 27, refd to. [para. 41].

R. v. Newhook (A.C.) (2008), 276 Nfld. & P.E.I.R. 190; 846 A.P.R. 190; 2008 NLCA 28, refd to. [para. 43].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 53].

R. v. C.G.O. (2012), 318 B.C.A.C. 273; 541 W.A.C. 273 (C.A.), refd to. [para. 53].

R. v. Knoblauch (W.L.), [2000] 2 S.C.R. 780; 262 N.R. 1; 271 A.R. 1; 234 W.A.C. 1; 2000 SCC 58, refd to. [para. 57].

Counsel:

L. St. Croix, for Her Majesty the Queen;

L. Luscombe, for Mr. Elford.

This matter was heard at Corner Brook, N.L., on March 27, 2012, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on April 3, 2012.