R. v. Pyke (C.A.), (2013) 330 N.S.R.(2d) 158 (CA)

• Judge: MacDonald, C.J.N.S., Saunders and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 10, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 330 N.S.R.(2d) 158 (CA);2013 NSCA 61

R. v. Pyke (C.A.) (2013), 330 N.S.R.(2d) 158 (CA);

    1046 A.P.R. 158

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. MY.034

Cordelle Alvin Pyke (appellant/respondent) v. Her Majesty the Queen (respondent/appellant)

(CAC 394824; CAC 395341; 2013 NSCA 61)

Indexed As: R. v. Pyke (C.A.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Saunders and Beveridge, JJ.A.

May 10, 2013.

Summary:

The accused was convicted by a jury of, inter alia, attempted murder. Other convictions were stayed based on the Kienapple principle.

The Nova Scotia Supreme Court, in a judgment reported (2012), 316 N.S.R.(2d) 132; 1002 A.P.R. 132, sentenced the accused to five years' imprisonment, less 22 months' credit for pre-trial custody based on a 1.5 to 1.0 ratio, leaving a net sentence to be served of 38 months' imprisonment. The accused appealed his conviction on the ground that the verdict was unreasonable. The Crown appealed the five year sentence on the ground that it was too lenient.

The Nova Scotia Court of Appeal dismissed the conviction appeal. The court dismissed the Crown's sentence appeal, subject to correcting a mathematical error respecting credit for remand time.

Criminal Law - Topic 5007

Appeals - Indictable offences - Review of verdicts - Where verdict based on findings of credibility - The 25 year old accused was one of a group of persons who attacked and stabbed the victim, causing a life-threatening injury - A jury convicted the accused of attempted murder, although it was unclear whether he was convicted as a principal or an aider - The accused denied stabbing the victim - The accused appealed his conviction on the ground that the verdict was unreasonable, particularly where the trial judge questioned the credibility of the victim and his brother, and expressed unease with the jury's verdict - The Nova Scotia Court of Appeal dismissed the appeal - The verdict was one that a properly instructed jury, acting judicially, could reasonably have entered - The critical issue was the victim's credibility, a matter that fell squarely within the jury's domain and did not easily lend itself to appellate court second guessing - The accused took no issue with the trial judge's jury instructions on assessing credibility - Where the jury was convinced beyond a reasonable doubt, despite credibility problems, that the accused stabbed the victim, "it would be inappropriate for us to interfere by acting as a '13th juror' in this case" - Based on the evidence, the verdict was not unreasonable - See paragraphs 18 to 38.

Criminal Law - Topic 5020

Appeals - Indictable offence - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 5007 ].

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - The 25 year old accused was one of a group of persons who attacked and stabbed the victim, causing a life-threatening injury - A jury convicted the accused of attempted murder as a principal - The accused had denied stabbing the victim - He was a substance abuser with limited education and an extensive criminal record involving the drug trade - He had a seven year old daughter - His drug and alcohol abuse commenced at a young age due to an abusive family situation - Although the accused always accepted responsibility for past offences, he continued to deny stabbing the victim - The trial judge, in sentencing the accused, commented that "I cannot help but feel a sense of unease at the verdict" - The judge noted surprise on the faces of counsel for the accused and the Crown when the jury returned a guilty verdict - The Crown sought 8-10 years' imprisonment - The court sentenced the accused to five years' imprisonment, less 22 months' credit for pre-trial custody on a 1.5 to 1.0 basis - The Nova Scotia Court of Appeal dismissed the Crown's sentence appeal, subject to correcting a mathematical error respecting credit for remand time - There was no error in principle - The judge did not err in expressing unease with the verdict - The court was satisfied that it had no effect on the sentence imposed (i.e., judge did not "water" down the sentence because he had concerns with the verdict) - The five year sentence, while at the low end of the range, was not demonstrably unfit - See paragraphs 39 to 56.

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 18].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 19].

R. v. W.H. (2013), 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R. 1; 2013 SCC 22, refd to. [para. 20].

R. v. Knickle (N.A.) (2009), 277 N.S.R.(2d) 392; 882 A.P.R. 392; 2009 NSCA 59, refd to. [para. 39].

Counsel:

Luke A. Craggs, for the appellant/respondent;

Mark Scott, for the respondent/appellant.

These appeals were heard on April 2, 2013, at Halifax, N.S., before MacDonald, C.J.N.S., Saunders and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On May 10, 2013, MacDonald, C.J.N.S., delivered the following judgment for the Court of Appeal.