R. v. Ross (J.W.), (2008) 327 Sask.R. 298 (QB)

• Judge: Konkin, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 16, 2008
• Jurisdiction: Saskatchewan
• Citations: (2008), 327 Sask.R. 298 (QB);2008 SKQB 243

R. v. Ross (J.W.) (2008), 327 Sask.R. 298 (QB)

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. JL.041

Her Majesty the Queen (appellant) v. John Walter Ross (respondent)

(2007 Q.B.A. No. 19; 2008 SKQB 243)

Indexed As: R. v. Ross (J.W.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Konkin, J.

June 16, 2008.

Summary:

Ross and a co-accused were charged with assault causing bodily harm. The Crown proceeded summarily. The co-accused pleaded guilty. Ross was convicted after a trial. Both were sentenced to a six month conditional sentence with a number of conditions attached, including a curfew, and no probation order. The Crown appealed Ross's sentence.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - Ross and a co-accused were charged with assault causing bodily harm - The Crown proceeded summarily - Ross was convicted after a trial, at which time the co-accused pleaded guilty - Ross and the co-accused struck the complainant a number of times - The complainant was bloodied and cut - Both accused were sentenced to a six month conditional sentence and no probation - The Crown appealed Ross's sentence, asserting that, inter alia, since the trial judge characterized the offence as a "near home invasion", he should have considered home invasion cases - The Saskatchewan Court of Queen's Bench dismissed the appeal - Had the Crown been convinced that this was a "near home invasion", it surely would have proceeded by indictment - The assault was an almost instantaneous response to the pleas of the complainant's daughter that the complainant had beat her up and to have something done about it - This was not a case of violence in a public place, but in a private home where the complainant's daughter had allowed and encouraged entry to do her bidding - Ross did not have a record - He was a medium risk to reoffend - A doctor's letter stated that Ross was not a good candidate for incarceration because of his health - Finally, the sentence was now served and there was no evidence of any breaches - The court could not say that the sentence was demonstrably unfit.

Criminal Law - Topic 5849.23

Sentencing - Considerations on imposing sentence - Home invasion - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5883

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

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served - [See Criminal Law - Topic 5720.4 ].

Cases Noticed:

R. v. Fraser (J.R.), [2007] 12 W.W.R. 615; 302 Sask.R. 210; 411 W.A.C. 210; 2007 SKCA 113, refd to. [para. 10].

R. v. Payne (D.M.) (2007), 293 Sask.R. 31; 397 W.A.C. 31; 2007 SKCA 28, refd to. [para. 10].

R. v. Pelly (R.J.) (2006), 279 Sask.R. 252; 372 W.A.C. 252; 210 C.C.C.(3d) 416; 2006 SKCA 60, refd to. [para. 10].

R. v. Morash (T.) (2006), 279 Sask.R. 38; 372 W.A.C. 38; 2006 SKCA 59, refd to. [para. 10].

R. v. Stroshein (K.B.), [2001] 5 W.W.R. 259; 203 Sask.R. 183; 240 W.A.C. 183; 2001 SKCA 20, refd to. [para. 14].

R. v. L.M. (2008), 374 N.R. 351; 2008 SCC 31, refd to. [para. 15].

Counsel:

Michel L.J. Piché, for the appellant Crown;

Cameron T. Schmunk, for the respondent.

This appeal was heard by Konkin, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Battleford, who delivered the following judgment on June 16, 2008.