R. v. Partridge (C.S.), (2005) 238 N.S.R.(2d) 373 (CA)

• Judge: Bateman, Oland and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 09, 2005
• Jurisdiction: Nova Scotia
• Citations: (2005), 238 N.S.R.(2d) 373 (CA);2005 NSCA 159

R. v. Partridge (C.S.) (2005), 238 N.S.R.(2d) 373 (CA);

    757 A.P.R. 373

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. DE.008

Her Majesty The Queen (appellant) v. Carl Stanley Partridge (respondent)

(CAC 244169; 2005 NSCA 159)

Indexed As: R. v. Partridge (C.S.)

Nova Scotia Court of Appeal

Bateman, Oland and Fichaud, JJ.A.

December 9, 2005.

Summary:

The accused was found guilty of three counts of assault against his former spouse. The accused failed to return for sentencing (left the province) and was at large for almost three years when arrested upon his return to Nova Scotia for his mother's funeral. The trial judge imposed three concurrent one year conditional sentences, including nine months' house arrest, plus one year's probation. The Crown appealed, submitting, inter alia, that the sentence was unfit and did not reflect the objectives of denunciation and deterrence.

The Nova Scotia Court of Appeal allowed the appeal and substituted an 18 month conditional sentence plus one year's probation. But for the fact that the accused had served his nine months of house arrest and was successfully engaged in treatment leading to his rehabilitation, the court would have imposed a 10-12 month period of incarceration as suggested by the Crown.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - An accused convicted of three counts of assaulting his spouse was permitted to move to British Columbia upon his promise to return for sentencing - The accused failed to return - He remained at large for three years until arrested upon his return for his mother's funeral - The trial judge imposed three concurrent one year conditional sentences, including nine months' house arrest, plus one year's probation - The Crown appealed, submitting that the sentence was unfit in failing to reflect the objectives of denunciation and deterrence - Further, the accused had failed to accept responsibility, had a history of spousal assault and had jumped bail - The Nova Scotia Court of Appeal held that the sentence was demonstrably unfit - Although the accused had now served his nine months' of house arrest, admitted responsibility and was taking counselling to rehabilitate himself, he should not benefit from his being at large in continuing defiance of the law - An accused should not be rewarded for jumping bail - Denunciation and deterrence required incarceration - But for the fact that the accused had served his nine months of house arrest and was successfully engaged in treatment leading to his rehabilitation, the court would have imposed a 10-12 month period of incarceration as suggested by the Crown - Had a period of imprisonment been imposed, the accused would already have been released from custody or would soon be released - The appropriate disposition was to add six months to the conditional sentences.

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5831.9 ].

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See Criminal Law - Topic 5831.9 ].

Criminal Law - Topic 5834.4

Sentencing - Considerations on imposing sentence - Fleeing jurisdiction before trial or sentencing - [See Criminal Law - Topic 5831.9 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - [See Criminal Law - Topic 5831.9 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5831.9 ].

Criminal Law - Topic 5861

Sentence - Assault - [See Criminal Law - Topic 5831.9 ].

Cases Noticed:

R. v. Longaphy (J.F.) (2000), 189 N.S.R.(2d) 102; 590 A.P.R. 102 (C.A.), refd to. [para. 9].

R. v. MacAdam (D.J.) (2003), 222 Nfld. & P.E.I.R. 1; 663 A.P.R. 1; 171 C.C.C.(3d) 449 (P.E.I.C.A.), refd to. [para. 10].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 112 C.C.C.(3d) 97 (C.A.), refd to. [para. 10].

R. v. Gagnon (1998), 130 C.C.C.(3d) 194 (Que. C.A.), refd to. [para. 10].

R. v. Thompson (1989), 98 A.R. 348; 50 C.C.C.(3d) 126 (C.A.), refd to. [para. 12].

R. v. Jones (No. 2) (1972), 56 Cr. App. R. 413 (C.A.), refd to. [para. 12].

R. v. Critton (P.D.), [2002] O.T.C. 451 (Sup. Ct.), refd to. [para. 13].

R. v. MacDonald (C.V.) (2003), 213 N.S.R.(2d) 344; 667 A.P.R. 344; 173 C.C.C.(3d) 235 (C.A.), refd to. [para. 14].

R. v. Spence (S.); R. v. Fraser (D.L.) (1992), 131 A.R. 301; 25 W.A.C. 301; 78 C.C.C.(3d) 451 (C.A.), refd to. [para. 14].

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. 15].

R. v. G.C.F. (2004), 189 O.A.C. 29; 188 C.C.C.(3d) 68 (C.A.), refd to. [para. 20].

R. v. Henry (T.A.) (2002), 203 N.S.R.(2d) 40; 635 A.P.R. 40 (C.A.), refd to. [para. 20].

R. v. Jones (D.B.) (2003), 214 N.S.R.(2d) 289; 671 A.P.R. 289 (C.A.), refd to. [para. 20].

R. v. MacLeod (R.B.) (2004), 222 N.S.R.(2d) 56; 701 A.P.R. 56 (C.A.), refd to. [para. 20].

R. v. Hamilton (M.A.) et al. (2004), 189 O.A.C. 90; 186 C.C.C.(3d) 129 (C.A.), refd to. [para. 21].

R. v. Edmondson (D.T.) (2005), 257 Sask.R. 270; 342 W.A.C. 270; 196 C.C.C.(3d) 164 (C.A.), refd to. [para. 22].

R. v. Symes (1989), 32 O.A.C. 102; 49 C.C.C.(3d) 81 (C.A.), refd to. [para. 22].

R. v. Shaw, [1977] O.J. No. 147 (C.A.), refd to. [para. 22].

R. v. Boucher (R.) (2004), 187 O.A.C. 378; 186 C.C.C.(3d) 479 (C.A.), refd to. [para. 22].

R. v. Hirnschall (J.) (2003), 173 O.A.C. 5; 176 C.C.C.(3d) 311 (C.A.), refd to. [para. 22].

R. v. Fox (K.S.), [2002] O.A.C. Uned. 163 (C.A.), refd to. [para. 22].

Counsel:

William D. Delaney, for the appellant;

Andrew House and Joshua Arnold, for the respondent.

This appeal was heard on November 15, 2005, at Halifax, N.S., before Bateman, Oland and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On December 9, 2005, Bateman, J.A., delivered the following judgment for the Court of Appeal.