R. v. Knockwood (S.J.), (2009) 283 N.S.R.(2d) 156 (CA)

• Judge: Saunders, Oland and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 18, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 283 N.S.R.(2d) 156 (CA);2009 NSCA 98

R. v. Knockwood (S.J.) (2009), 283 N.S.R.(2d) 156 (CA);

    900 A.P.R. 156

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. OC.009

Stephen John Knockwood (appellant) v. Her Majesty the Queen (respondent)

(CAC 311483; 2009 NSCA 98)

Indexed As: R. v. Knockwood (S.J.)

Nova Scotia Court of Appeal

Saunders, Oland and Fichaud, JJ.A.

October 7, 2009.

Summary:

The accused was sentenced to 12 months' imprisonment for assault causing bodily harm and concurrent terms of three months' imprisonment for mischief and breach of a recognizance, followed by two years' probation. The accused obtained leave to appeal the sentence and appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Criminal Law - Topic 5720.3

Punishments (sentence) - Conditional sentence - Considerations - The accused, in a case involving domestic violence, appealed his custodial sentence, asserting that the sentencing judge failed to consider s. 718.2(3) of the Criminal Code (circumstances of aboriginal offenders) in concluding that a conditional sentence order was not appropriate - The Nova Scotia Court of Appeal rejected the assertion - The sentencing judge dealt with s. 718.2(3) shortly before considering the conditional sentence regime - As she had already dealt with that provision, she was not required to repeat her comments when considering a conditional sentence order - See paragraphs 37 and 38.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - Despite the fact that the accused was bound by a recognizance which prohibited contact with his estranged wife, he and his wife spent the day together visiting family - On the return trip, with the accused driving, the wife fell asleep - When she awakened, the accused was swearing at her having viewed photos of men on her cell phone - He became very angry - She pulled the keys from the ignition and ran - The accused caught her by the hair and yanked her down - She managed to escape, but was caught again - She was choked, beaten, bitten and bruised - By the time that the attacked stopped, her shirt had been ripped off - The accused was sentenced to 12 months' imprisonment for assault causing bodily harm and concurrent terms of three months' imprisonment for mischief for damage to property and breach of a recognizance, followed by two years' probation - The Nova Scotia Court of Appeal rejected an assertion that the sentencing judge erred in not imposing a conditional sentence - Imposing a conditional sentence was discretionary - The accused had requested a suspended sentence of probation, not a conditional sentence - An offence against a spouse was deemed to be an aggravating factor (Criminal Code, s. 718.2(a)(ii)) - The fact that this was the second assault on the same victim was a significant aggravating factor - The sentence was fit and reasonable - See paragraphs 37 to 42.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The Nova Scotia Court of Appeal stated that "Communications between Crown and defence counsel concerning sentence cover a broad spectrum. Situations will vary ranging from virtually no communication at all, to a casual overture without any tangible result, to a representation from one side which turns out to be virtually the same as the other, to serious bargaining in which a negotiated guilty plea is exchanged for leniency or some other concession. The sentencing judge must be apprised of, and take into account, all of the circumstances underlying the 'joint submission' in order to see where the case falls on that continuum. ... The weight to be attached to counsels' submissions will depend upon the degree to which they truly collaborated in concluding their mutually satisfactory arrangements." - See paragraph 17.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The accused in a case involving domestic violence appealed his sentence of 12 months' imprisonment and two years' probation, asserting that the sentencing judge erred in departing from a joint recommendation for a sentence of 18 months' probation - The Nova Scotia Court of Appeal rejected the assertion - Where, the accused's conviction followed a trial rather than a negotiated guilty plea and the similarity in counsel's positions when recommending sentence was based on pure coincidence rather than any plea bargain, the sentencing judge was free to depart from the submissions of both Crown and defence, and order a different sentence - The sentence should not be disturbed unless the court was convinced it was clearly inappropriate - Despite the relaxed procedural strictures, the sentencing judge characterized counsels' companion recommendations as "still entitled to a high degree of deference" - Further, the judge provided cogent reasons for rejecting their position: the case involved spousal violence; the accused had a record for spousal violence involving the same victim; he was on probation for assaulting the same victim when he committed these offences; the assault was serious and resulted in significant bruising to the victim; and at some point during the assault, the victim feared for her life and found it difficult to breathe because of what the accused was doing - See paragraphs 12 to 20.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See Criminal Law - Topic 5720.4 and second Criminal Law - Topic 5813 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Criminal Law - Topic 5720.3 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The accused, in a case involving domestic violence, appealed his sentence, asserting that the sentencing judge failed to consider his circumstances as an aboriginal offender - The Nova Scotia Court of Appeal rejected the assertion - The sentencing judge understood that it was her responsibility to sentence this offender for this crime - There was no indication in the material presented to the judge of any negative influences in the accused's upbringing - The accused was not a troubled youth - He grew up in a stable family environment - He was not plagued by drug or alcohol problems - He obtained a diploma and certification in water treatment, water distribution and waste water collection from a community college - He held full-time employment - He did not want to avail himself of a sentencing circle - His criminal record did not commence until 2006 - The judge instructed herself properly in the interpretation of s. 718.2(e) of the Criminal Code as it concerned aboriginal offenders - She assessed the Gladue principles and determined that they had no application to the accused, personally - She was justified in concluding that the accused had not been adversely affected by the troubles in his community - She paid close attention to the accused's circumstances, as she was obliged to do - Given his criminal record as a repeat domestic violence offender, together with the information contained in his pre-sentence report as to the positive, supportive aspects of his family, education and employment, the judge did not err in her analysis and application of s. 718.2(e) - See paragraphs 21 to 25.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Bail - An accused appealed his sentence, asserting that the sentencing judge erred by not considering the stringent conditions of his pre-trial release as a mitigating factor - The Nova Scotia Court of Appeal stated that the impact of strict release conditions could be considered or "put into the mix" together with all other mitigating factors, in arriving at a fit sentence - The impact of the particular conditions of release upon the accused had to be demonstrated in each case - There had to be some information that described the substantial hardship that the accused actually suffered while on release because of the conditions of that release - Here, aside from a recitation of the terms of the accused's pre-trial release, nothing further was put on the record - The sentencing judge was asked to infer from the conditions themselves that the accused had suffered hardship - That did not satisfy the onus - See paragraphs 26 to 36.

Criminal Law - Topic 5883

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

Criminal Law - Topic 5890

Sentence - Mischief - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5892

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

Cases Noticed:

R. v. L.M. (2008), 374 N.R. 351; 2008 SCC 31, refd to. [para. 11].

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, refd to. [para. 11].

R. v. Longaphy (J.F.) (2000), 189 N.S.R.(2d) 102; 590 A.P.R. 102; 2000 NSCA 136, refd to. [para. 11].

R. v. Conway (M.F.) (2009), 282 N.S.R.(2d) 154; 895 A.P.R. 154; 2009 NSCA 95, refd to. [para. 11].

R. v. MacIvor (R.M.) (2003), 215 N.S.R.(2d) 344; 675 A.P.R. 344; 2003 NSCA 60, refd to. [para. 15].

R. v. G.P. (2004), 229 N.S.R.(2d) 61; 725 A.P.R. 61; 2004 NSCA 154, not folld. [para. 15].

R. v. Sinclair (E.J.) (2004), 184 Man.R.(2d) 1; 318 W.A.C. 1; 2004 MBCA 48, refd to. [para. 17].

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, refd to. [para. 21].

R. v. Downes (C.) (2006), 208 O.A.C. 324; 205 C.C.C.(3d) 488 (C.A.), refd to. [para. 28].

R. v. Panday (A.) et al. (2007), 228 O.A.C. 160; 2007 ONCA 598, refd to. [para. 29].

R. v. Ijam (G.) (2007), 228 O.A.C. 296; 2007 ONCA 597, refd to. [para. 29].

R. v. Irvine (C.W.) (2008), 225 Man.R.(2d) 281; 419 W.A.C. 281; 2008 MBCA 34, refd to. [para. 29].

R. v. Voeller (S.T.) (2008), 335 N.B.R.(2d) 143; 861 A.P.R. 143; 2008 NBCA 37, refd to. [para. 29].

R. v. Nghiem (H.B.), [2009] B.C.A.C. Uned. 31; 2009 BCCA 170, refd to. [para. 30].

R. v. Newman (M.G.) - see R. v. Hilderman (A.E.D.) et al.

R. v. Hilderman (A.E.D.) et al. (2005), 371 A.R. 4; 354 W.A.C. 4; 2005 ABCA 249, refd to. [para. 31].

R. v. Ogden (V.M.) (2004), 224 N.S.R.(2d) 283; 708 A.P.R. 283; 2004 NSCA 86, refd to. [para. 32].

R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 39].

R. v. MacDonald (C.V.) (2003), 213 N.S.R.(2d) 344; 667 A.P.R. 344; 2003 NSCA 36, refd to. [para. 40].

Counsel:

Kerri-Ann Robson, for the appellant;

Kenneth W.F. Fiske, Q.C., for the respondent.

This appeal was heard in Halifax, Nova Scotia, on September 18, 2009, by Saunders, Oland and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. The following decision of the court was delivered on October 7, 2009, by Saunders, J.A.