R. v. Good (H.J.), (2012) 318 B.C.A.C. 227 (YukCA)

• Judge: Huddart, Mackenzie and Neilson, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: March 16, 2012
• Jurisdiction: Yukon
• Citations: (2012), 318 B.C.A.C. 227 (YukCA);2012 YKCA 2

R. v. Good (H.J.) (2012), 318 B.C.A.C. 227 (YukCA);

    541 W.A.C. 227

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. MR.034

Regina (respondent) v. Helen June Good (aka Helen June Smith) (appellant)

(YU0661; 2012 YKCA 2)

Indexed As: R. v. Good (H.J.)

Yukon Court of Appeal

Huddart, Mackenzie and Neilson, JJ.A.

March 16, 2012.

Summary:

The accused was convicted of assault causing bodily harm and uttering death threats. The trial judge, in a judgment reported 2010 YKTC 96, sentenced the accused to concurrent sentences of three years' imprisonment, less five months' credit for pre-trial custody, and a 10 year supervision order as a long-term offender. The accused appealed on the grounds that the trial judge failed to consider her aboriginal status (Criminal Code, s. 718.2(e)) and that the sentence was excessive and unfit.

The Yukon Court of Appeal dismissed the appeal.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The 59 year old accused was convicted of assault causing bodily harm and uttering death threats - While under the influence of alcohol, the accused broke her husband's jaw and threatened him - This was the fourth such incident since 1997, all of which caused serious injuries to the husband - The accused had a 40 year history of alcohol-fuelled violent criminal behaviour, including 21 prior convictions, 12 of which were violent assaults against various persons, including other women and minors - A Gladue Report indicated that the accused suffered physical, sexual and emotional abuse from her alcoholic and neglectful parents and in Indian residential schools - The accused had high potential for gratuitous and excessive violence when she drank alcohol - Extensive and repeated counselling was ineffective - She was diagnosed with Borderline Personality Disorder, Antisocial Personality Disorder and Alcohol Dependence - The trial judge designated the accused to be a long-term offender and sentenced her to concurrent sentences of three years' imprisonment, less five months' credit for pre-trial custody, and a 10 year supervision order - The accused appealed on the grounds that the trial judge failed to consider her aboriginal status (Criminal Code, s. 718.2(e)) and that the sentence was excessive and unfit - The Yukon Court of Appeal dismissed the appeal - The judge's failure to expressly mention s. 718.2(e) or the two-stage Gladue analysis was not fatal where the record made it apparent that the judge gave proper consideration to the accused's aboriginal status - Given the lengthy history of significant and gratuitous violence, years of therapy with no apparent benefit, and the high risk of re-offending, the sentence imposed was not excessive or unfit - The judge did not over-emphasize denunciation, deterrence and protection of the public.

Criminal Law - Topic 5883

Sentence - Assault with a weapon or assault causing bodily harm - [See Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 5895

Sentence - Threats - [See Criminal Law - Topic 5846.1 ].

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; 133 C.C.C.(3d) 385, refd to. [para. 5].

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; 105 C.C.C.(3d) 327, refd to. [para. 22].

R. v. Sutherland (E.P.) (2009), 281 B.C.A.C. 33; 475 W.A.C. 33; 2009 BCCA 534, refd to. [para. 25].

R. v. Napesis (D.J.) (2010), 294 B.C.A.C. 255; 498 W.A.C. 255; 2010 BCCA 499, refd to. [para. 25].

R. v. Mack (L.J.) (2008), 263 B.C.A.C. 138; 443 W.A.C. 138; 2008 BCCA 520, refd to. [para. 25].

R. v. Awasis (J.W.) (2010), 287 B.C.A.C. 39; 485 W.A.C. 39; 2010 BCCA 213, refd to. [para. 25].

R. v. Ladue (F.R.) (2011), 302 B.C.A.C. 93; 511 W.A.C. 93; 271 C.C.C.(3d) 90; 2011 BCCA 101, refd to. [para. 25].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 26].

R. v. Kendi, 2007 YKTC 27, refd to. [para. 41].

R. v. Reeves (R.E.), [2003] Yukon Cases (TerrCt) 97; 2003 YKTC 97, refd to. [para. 41].

R. v. Denny (R.M.), [2009] Yukon Cases Uned. (TC) 106; 2009 YKTC 106, refd to. [para. 41].

R. v. Huebschwerlen, 2008 YKTC 16, refd to. [para. 41].

R. v. Wells (J.W.), [2000] 1 S.C.R. 207; 250 N.R. 364; 250 A.R. 273; 213 W.A.C. 273, refd to. [para. 42].

R. v. Ipeelee (M.) (2009), 264 O.A.C. 392; 99 O.R.(3d) 419; 2009 ONCA 892, leave to appeal granted (2010), 413 N.R. 387 (S.C.C.), refd to. [para. 43].

Counsel:

B. Land-Murphy, for the appellant;

D. McWhinnie, for the respondent.

This appeal was heard on November 15, 2011, at Vancouver, B.C., before Huddart, Mackenzie and Neilson, JJ.A., of the Yukon Court of Appeal.

On March 16, 2012, Neilson, J.A., delivered the following judgment for the Court of Appeal.