R. v. R.S.W., (2015) 364 Nfld. & P.E.I.R. 113 (NLTD(G))

• Judge: Mennie, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: January 28, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 364 Nfld. & P.E.I.R. 113 (NLTD(G))

R. v. R.S.W. (2015), 364 Nfld. & P.E.I.R. 113 (NLTD(G));

    1136 A.P.R. 113

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MR.037

Her Majesty the Queen v. R.S.W.

(201304G0201; 2015 NLTD(G) 31)

Indexed As: R. v. R.S.W.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Mennie, J.

March 10, 2015.

Summary:

The accused was charged with physically assaulting his son (now age 17) and daughter (now age 18), beginning in the late 1990's and continuing until late 2012. He was also charged with a number of sexual offences involving his daughter. Both children were removed from the accused's home by social workers in January 2013. The accused indicated that he slapped his children for purposes of discipline. He denied all allegations of sexually inappropriate behavior.

The Newfoundland and Labrador Supreme Court, Trial Division (General), in a decision reported at (2014), 357 Nfld. & P.E.I.R. 26; 1109 A.P.R. 26, convicted the accused on the assault charges (Criminal Code, s. 266(a)), and acquitted him in relation to the sexual offences. A sentencing hearing took place.

The Newfoundland and Labrador Supreme Court, Trial Division (General), sentenced the accused to a total sentence of four months' imprisonment to be served in the community, followed by a two year period of probation. The Court also imposed a firearms prohibition order for a period of five years and a DNA order.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5833.1

Sentencing - Considerations on imposing sentence - Child abuse - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5861

Sentence - Assault (incl. common assault) - The accused, a 56 year old male and single parent, was convicted of two counts of assault (Criminal Code, s. 266) - The victims were his two very young children - The accused assaulted them by slapping them in the arm and head on more than one occasion - At sentencing, the accused maintained his innocence - The Newfoundland and Labrador Supreme Court, Trial Division (General), imposed two months' imprisonment on each charge, to run consecutively, to be served in the community, followed by two year's probation - The sentence precedents ranged from a suspended sentence to a period of incarceration - Mitigating factors: offences were on the lower end of the range and did not cause physical harm; the accused's commitment to counselling over the past 18 months - Aggravating factors: prior criminal record; lack of remorse; assaults occurred more than once - Deterrence and denunciation were the primary focus - The statutory prerequisites for a conditional sentence had been met: there was no minimum term of imprisonment for the offence; any risk to the safety of the community could be managed by the imposition of strict conditions; and a conditional sentence would meet the objectives of sentencing as well as assist the accused with his rehabilitation - See paragraphs 22 to 37.

Cases Noticed:

R. v. Marks (K.J.) (1994), 121 Nfld. & P.E.I.R. 200; 377 A.P.R. 200; 91 C.C.C.(3d) 421 (Nfld. C.A.), refd to. [para. 12].

R. v. Hodder (M.J.), [2010] N.J. No. 144 (Prov. Ct.), refd to. [para. 12].

R. v. E.H. (2012), 326 Nfld. & P.E.I.R. 235; 1012 A.P.R. 235 (N.L. Prov. Ct.), refd to. [para. 12].

R. v. MacDonald (K.) (2009), 236 Man.R.(2d) 239; 448 W.A.C. 239; 2009 MBCA 36, refd to. [para. 12].

R. v. Nasogaluak (L.M.) (2010), 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 16].

R. v. Ipeelee (M.) (2012), 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 17].

R. v. Young (M.J.) (2007), 267 Nfld. & P.E.I.R. 226; 811 A.P.R. 226 (NLTD), refd to. [para. 21].

R. v. N.S., [2008] A.R. Uned. 433; 2008 ABPC 183, refd to. [para. 21].

R. v. Randell (J.T.) (2011), 316 Nfld. & P.E.I.R. 103; 982 A.P.R. 103 (N.L. Prov. Ct.), refd to. [para. 21].

R. v. D.W., 2014 BCPC 36, refd to. [para. 21].

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; 2000 SCC 5, refd to. [para. 30].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 718.01 [para. 18]; sect. 718.2 [para. 19].

Counsel:

Trina Simma, for Her Majesty the Queen;

Jonathan Regan, for R.S.W.

This sentencing hearing was held on January 28, 2015, at Corner Brook, NL, before Mennie, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment, given orally on March 10, 2015.