R. v. George (N.H.W.), (1994) 128 N.S.R.(2d) 248 (CA)

• Judge: Jones, Hart and Pugsley, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 10, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 128 N.S.R.(2d) 248 (CA)

R. v. George (N.H.W.) (1994), 128 N.S.R.(2d) 248 (CA);

  359 A.P.R. 248

MLB headnote and full text

Her Majesty The Queen (appellant) v. Neil Hamilton William George (respondent)

(C.A.C. 02921)

Indexed As: R. v. George (N.H.W.)

Nova Scotia Court of Appeal

Jones, Hart and Pugsley, JJ.A.

February 10, 1994.

Summary:

The accused pleaded guilty to aggravated assault, assault, assault causing bodily harm and unlawfully storing an unregistered fire­arm. The trial judge sentenced the accused to a total of one year's imprisonment, calculated from the date of the offence. The Crown appealed the sentences (except the firearms offence).

The Nova Scotia Court of Appeal allowed the appeal. The trial judge erred in calculat­ing the sentence from the date of the offence. The sentence was to be calculated from the date of sentencing. The court stated that the one year total sentence was inad­equate, however, the court refused to increase the sentence where it would work an undue hardship on the accused's young son. The court varied the sentence to time served, but did impose 18 months' probation.

Criminal Law - Topic 5656

Punishments (sentence) - Imprisonment and parole - Term of imprisonment - Commencement of - A trial judge directed that the accused's sentence be calculated from the date of the offence (February 28) rather than the date of sentencing (July 28) - Section 721(1) of the Criminal Code provided that a sentence commenced "when it is imposed, except where a rel­evant enactment provides otherwise" - The Nova Scotia Court of Appeal held that the trial judge had no jurisdiction to direct that the term of imprisonment be calculated from a date earlier than when it was imposed - See paragraphs 6 to 8.

Criminal Law - Topic 5861

Sentence - Assault - [See Criminal Law - Topic 6204 ].

Criminal Law - Topic 5883

Sentence - Assault causing bodily harm - [See Criminal Law - Topic 6204 ].

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See Criminal Law - Topic 6204 ].

Criminal Law - Topic 6204

Sentencing - Appeals - Variation of sen­tence - Grounds for refusing to vary sen­tence - The 51 year old accused lived on social assistance with his 25 year old wife and six year old son - The accused, in a jealous rage, inflicted superficial stab wounds on two persons with a pocket knife and punched his wife in the face and head - The accused pleaded guilty to aggravated assault, assault and assault causing bodily harm and was sentenced to a total of one year's imprisonment, which had now been served - Minor assault convictions in the 1960's - Rape convic­tion in 1979 - Number of narcotics con­victions in last 10 years - The Nova Scotia Court of Appeal held that the one year sentence was inadequate - However, the court declined to increase the sentence where the accused's wife abandoned him and his son and the accused now had full-time employment - To re-imprison the accused for a short period would work an undue hardship on his son - The court varied the sentence to time served plus 18 months' probation.

Cases Noticed:

R. v. Colley (1991), 100 N.S.R.(2d) 447; 272 A.P.R. 447 (C.A.), refd to. [para. 11].

R. v. Dzikowski (1990), 99 N.S.R.(2d) 362; 270 A.P.R. 362 (C.A.), refd to. [para. 32].

R. v. Delaney (1983), 55 N.S.R.(2d) 595; 114 A.P.R. 595 (C.A.), refd to. [para. 34].

R. v. Cormier (1974), 9 N.S.R.(2d) 687; 22 C.C.C.(2d) 235 (C.A.), refd to. [para. 47].

R. v. MacPhee (1982), 35 N.B.R.(2d) 196; 88 A.P.R. 196 (C.A.), refd to. [para. 47].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 100(1) [para. 9]; sect. 116, sect. 266(a), sect. 267(1)(b), sect. 268(2) [para. 1]; sect. 676(1)(d) [para. 3]; sect. 721(1), sect. 721(3) [para. 7]; sect. 737(4) [para. 50].

Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 6 [para. 4].

Counsel:

Kenneth W.F. Fiske, Q.C., for the appel­lant;

Maurice G. Smith, for the respondent.

This appeal was heard on February 1, 1994, before Jones, Hart and Pugsley, JJ.A., of the Nova Scotia Court of Appeal.

On February 10, 1994, Pugsley, J.A., delivered the following judgment for the Court of Appeal.