R. v. Wesslen (A.J.), 2015 ABCA 74

• Judge: Berger, Rowbotham and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 24, 2015
• Citations: 2015 ABCA 74;(2015), 599 A.R. 159

R. v. Wesslen (A.J.) (2015), 599 A.R. 159; 643 W.A.C. 159 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.008

Her Majesty the Queen (appellant) v. Allen Jeffrey Wesslen (respondent)

(1401-0102-A; 2015 ABCA 74)

Indexed As: R. v. Wesslen (A.J.)

Alberta Court of Appeal

Berger, Rowbotham and O'Ferrall, JJ.A.

February 24, 2015.

Summary:

The accused pleaded guilty to aggravated assault and assault with a weapon. He was sentenced to 90 days' imprisonment, to be served intermittently, and two years' probation. The Crown appealed against sentence.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See Criminal Law - Topic 5883 ].

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See Criminal Law - Topic 5883 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5883 ].

Criminal Law - Topic 5848

Sentencing - Considerations on imposing sentence - Provocation - [See Criminal Law - Topic 5883 ].

Criminal Law - Topic 5883

Sentence - Assault with a weapon or assault causing bodily harm - The intoxicated accused, while attending a house party, opened a door to find his former girlfriend in bed with another man - The accused said something, then left and shut the door - When the accused believed he heard laughter, he re-entered the room and struck the man in the head with a plastic CD stand (weapon of opportunity) - He also struck the girlfriend when she attempted to intervene - Police were called - The accused did not flee - He entered early guilty pleas to aggravated assault and assault with a weapon - The man was seriously injured, requiring surgery to install a metal plate in his head - He was left with nerve damage and full recovery would take five years - The Crown sought 12-18 months' imprisonment - The trial judge imposed a 90 day intermittent sentence and two years of strict probation, including a curfew for the first year - The assault was a spontaneous fit of jealous anger in response to the provocative nature of what the accused saw and heard - That was not a defence, but reduced his moral blameworthiness - The accused was a low to moderate risk to reoffend, was taking appropriate rehabilitative steps, had family and community support and a good job, was a first-time offender, and pleaded guilty almost immediately - He accepted responsibility and was remorseful - Aggravating factors included use of a weapon, the domestic-related nature of the assaults and the life-threatening harm caused - The Crown appealed, arguing that the sentence was unfit and inadequately reflected the gravity of the offence, and that the trial judge erred in finding the accused's rehabilitation mitigating and in overemphasizing the "provocative nature" of the circumstances - The Alberta Court of Appeal dismissed the appeal - In these circumstances, a shorter sentence than unusual combined with a longer period of restrictive probation was proportionate to the gravity of the offence and not an unfit sentence - Rehabilitation and the provocative nature of the circumstances were not overemphasized - The domestic-related nature of the assault was not underemphasized.

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See Criminal Law - Topic 5883 ].

Cases Noticed:

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 5].

R. v. Arcand - see R. v. J.L.M.A.

R. v. Knott (D.W.) et al., [2012] 2 S.C.R. 470; 433 N.R. 38; 324 B.C.A.C. 1; 551 W.A.C. 1; 2012 SCC 42, refd to. [para. 8].

R. v. Evans (K.A.) (1997), 196 A.R. 207; 141 W.A.C. 207; 1997 ABCA 207, refd to. [para. 29].

R. v. Lee (D.) (2003), 346 A.R. 195; 320 W.A.C. 195; 2004 ABCA 46, refd to. [para. 29].

R. v. Ly (T.Q.) (2013), 441 N.R. 375; 544 A.R. 40; 567 W.A.C. 40; 293 C.C.C. (3d) 530; 2013 SCC 15, refd to. [para. 37].

R. v. Pham - see R. v. Ly (T.Q.).

R. v. Moller (M.H.) (2012), 539 A.R. 300; 561 W.A.C. 300; 2012 ABCA 381, dist. [para. 48].

R. v. Sykes (B.), [2010] A.R. Uned. 30; 49 Alta. L.R.(5th) 57; 2010 ABCA 24, dist. [para. 48].

R. v. Jamieson (D.J.), [2009] A.R. Uned. 68; 2009 ABCA 208, dist. [para. 48].

R. v. Gorman (S.N.) (2008), 437 A.R. 311; 433 W.A.C. 311; 2008 ABCA 311, dist. [para. 48].

R. v. Ruksys (A.J.) (2006), 401 A.R. 82; 391 W.A.C. 82; 2006 ABCA 270, dist. [para. 48].

R. v. Mathieu (F.) (2005), 363 A.R. 133; 343 W.A.C. 133 (C.A.), dist. [para. 48].

R. v. Bazinet (G.O.) (2005), 384 A.R. 347; 367 W.A.C. 347; 2005 ABCA 388, dist. [para. 48].

R. v. Bunes (D.H.) (1999), 232 A.R. 152; 195 W.A.C. 152; 1999 ABCA 29, dist. [para. 48].

R. v. Berry (A.S.) (1998), 216 A.R. 89; 175 W.A.C. 89; 1998 ABCA 107, dist. [para. 48].

R. v. Childs (1991), 120 A.R. 58; 8 W.A.C. 58; 1991 ABCA 300, dist. [para. 48].

Counsel:

J. Morgan, for the appellant;

J. Williamson, for the respondent.

This appeal was heard on November 18, 2014, before Berger, Rowbotham and O'Ferrall, JJ.A., of the Alberta Court of Appeal.

On February 24, 2015, the following memorandum of judgment was filed by the Court.