PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION HER MAJESTY THE QUEEN STACEY REID BLACKMORE

Transcription

1 Date: Docket: AD-0832 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION BETWEEN: AND: HER MAJESTY THE QUEEN STACEY REID BLACKMORE APPELLANT RESPONDENT Before: The Honorable Chief Justice N.H. Carruthers The Honorable Mr. Justice G.E. Mitchell The Honorable Mr. Justice J.A. McQuaid Darrell E. Coombs Counsel for the Appellant W. Kent Brown, Q.C. Counsel for the Respondent Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island November 17, 1999 Charlottetown, Prince Edward Island December 7, 1999 Written Reasons by: The Honorable Chief Justice N.H. Carruthers Concurred in by: The Honorable Mr. Justice G.E. Mitchell The Honorable Mr. Justice J.A. McQuaid

2 Date: Docket: AD--832 Registry: Charlottetown HER MAJESTY THE QUEEN AND STACEY REID BLACKMORE APPELLANT RESPONDENT (6 pages) Before: Carruthers, C.J.P.E.I.; Mitchell and McQuaid, JJ.A. Heard: November 17, 1999 Judgment: December 7, 1999 CRIMINAL LAW - Sentence appeal - Aggravated assault The Court of Appeal allowed the appeal and increased a sentence of two years less one day and probation for three years to four years to be served in a Federal institution and a prohibition order. CASES CONSIDERED: R. v. Shropshire, [1995] 4 S.C.R. 227 (S.C.C.); R. v. M.C.C.A., [1996] 1 S.C.R. 500 (S.C.C.); R. v. McDonnell, [1997] 1 S.C.R. 948 (S.C.C.); The Queen v. Tusek, [1999] O.J. No.3413 (Ont.C.A.); R. v. Hann, October 22, 1996 (P.E.I.Prov.Ct.) STATUTES CONSIDERED: CRIMINAL CODE, R.S.C. 1985, c. C-46, s-s.268(1), s-s.268(2); ss.718, 718.1, 718.2, s-s.718(a), (b) and (d); ss.723, 724; s-s.732.2(3)(a) and (b) Darrell E. Coombs, for the appellant W. Kent Brown, Q.C., for the respondent

3 CARRUTHERS C.J.: [1] This application for leave to appeal and appeal of sentence if leave is granted, raises the appropriateness of a sentence of two years less one day followed by probation for a period of three years, one of the terms being that the respondent attend a one year program at His Mansion immediately upon his release from custody, for an aggravated assault charge under s.268(1) of the Criminal Code. BACKGROUND [2] The respondent entered a guilty plea on January 28, 1999, to a change of aggravated assault under s.268(1) of the Criminal Code. He was sentenced on March 10, 1999, at which time the following agreed statement of facts was filed with the court. Ian Chisholm, Donald Conohan, and a third male were the tenants of 4 Valdane Drive, Apartment #3, Charlottetown, Prince Edward Island. On December 26, 1998, in the late afternoon, Chisholm was at home with [sic - when] Stacey Blackmore, the accused arrived to collect $500 he felt was owed to a friend by Chisholm and/or Conohan. Chisholm denied owing any money. Blackmore smashed a glass coffee table belonging to Conohan with a handmade club and struck Chisholm in the face and said he would be back. He returned at 6:30 p.m. with companions. Conohan and Chisholm had barricaded the door, but the accused said he just wanted to talk and there would be no violence. When they opened the door, he rushed in with the club he had used previously in one hand and a butcher knife in the other. He struck Chisholm with the hand holding the knife, cutting his forehead. Twelve stitches were ultimately required to close this cut. The victim Conohan, attempted to intervene as he knew the accused previously, and was cut in the side. He let go and Blackmore went for Chisholm again. Conohan again tried to stop him and was stabbed by Blackmore in the chest and in the throat. This throat wound was extremely serious was immediately apparent to everyone. Blackmore left in one vehicle, while one of his companions put Mr. Conohan in another vehicle and drove him to the emergency entrance to the Queen Elizabeth Hospital, where he left him. Conohan entered the emergency room and collapsed. Chisholm had called friends after Blackmore left and they drove him to the hospital. After speaking to Chisholm and others at the Queen Elizabeth Hospital, police proceeded to a residence in Marshfield where Blackmore and his companions were believed to be. Shortly afterward, Blackmore and others got into two cars and were then pursued by police until they pulled over in the Hillsborough Development. Police following the car containing Blackmore observed an object thrown from the vehicle which later turned out to be the homemade club that Blackmore had used. The knife was not recovered. Conohan spent over two weeks in the hospital and his medical report is attached/will be filed. Blackmore was highly intoxicated by cocaine and alcohol at the time of these offences and has no recollection of stabbing Conohan. [3] Two medical reports from Dr. Grant were also filed. They detailed the injuries suffered by the victim. A letter dated January 28, 1999, updating the victim's condition was also filed with a presentence report. The injuries suffered by the victim are

4 described as life threatening. [4] The presentence report contains a lengthy criminal record of 15 prior convictions dating back to May 6, 1984, with the most recent one being December 11, He has served two three-year sentences as well as shorter sentences. The presentence report indicates that violence, substance abuse and addiction are prevalent features in the behavioural profile of the respondent. [5] The Crown submitted at the sentence hearing that this was one of the most serious cases of violent crimes to appear before the court and that the respondent is a high risk offender. It asked the court to impose a sentence of between four to six years in a Federal penitentiary. [6] Defence counsel agreed that it was a very serious offence and that a lengthy period of incarceration was appropriate to address the sentencing principles of general deterrence and denunciation. The real issue, he submitted, was to impose a sentence that would address those concerns and, at the same time, fully address the principle of rehabilitation in order to prevent such behaviour in the future. He indicated the respondent had an interest in getting involved in the program known as His Mansion and spending a full year in the program. He, therefore, recommended a sentence of two years less a day followed by three years of probation with very strict terms. [7] The respondent addressed the court as well. He asked the court for the benefit of the doubt and a chance. He did not specifically mention His Mansion program. [8] Captain Richard Webber, Chaplin at the Correctional Institution, also addressed the court. He stated that His Mansion was willing to have one of their staff go to the Correctional Institution on a weekly basis to work with the respondent. [9] The sentencing judge sentenced the respondent to the Provincial Correctional Institution for a term of two years less one day, followed by probation for a period of three years with conditions. One of the conditions being that immediately upon the respondent's release from custody he is to attend a one-year program at His Mansion and that he comply with all the requirements, the rules and the expectations of that program. [10] The Crown now alleges the sentence imposed by the sentencing judge is manifestly inadequate given the circumstances of the offence and the respondent's prior criminal record. ANALYSIS [11] There now appears to have been some misunderstanding at the trial level about the situation surrounding the program known as His Mansion. The sentencing judge made the following remarks during sentencing (see Appeal Book, Tab 3, p.17, l.13).

5 I have heard the statements made that you have been, you, yourself, have applied and you have been accepted into His Mansion program and you are prepared to undergo that program. It will be a specific term of the probation that immediately upon your release you attend a one year program at His Mansion and that you will comply with all the requirements, the rules and the expectations of that program. Breaches of those rules imposed will be a breach of probation which could have you back before the court. [12] This court has now been informed that the program His Mansion does not accept violent offenders. This situation presents a major problem with respect to the sentence as it is obvious the respondent cannot now abide by a term of his Probation Order. [13] The respondent submits the Crown should have addressed this problem at the sentencing hearing and relies on the provisions of ss.723 and 724 of the Criminal Code which set out the powers and procedures for determining the facts upon which the sentence will be based. [14] The respondent also submits it is still open to this court to find that the sentencing judge would have imposed a sentence of two years less a day and probation for three years if he had realized the respondent was not eligible for acceptance into His Mansion program. He also submits the Crown has failed to establish that the sentencing judge made any error in law or in principle or that the sentence is unfit or outside the range of an appropriate sentence. [15] It is possible that the condition of the probation order regarding attendance at His Mansion program could be cured by an application under s.732.2(3)(a) and (b) of the Criminal Code. These provisions state: 732.2(3) A court that makes a probation order may at any time, on application by the offender, the probation officer or the prosecutor, require the offender to appear before it and, after hearing the offender and one or both of the probation officer and the prosecutor, (a) (b) make any changes to the optional conditions that in the opinion of the court are rendered desirable by a change in the circumstances since these conditions were prescribed, relieve the offender, either absolutely or on such terms or for such

6 period as the court deems desirable, of compliance with any optional condition, or... [16] Such a procedure, however, is not warranted in this case. [17] The Crown submits the appeal should still be allowed even if the condition of the probation order concerning His Mansion program was a condition which the respondent could comply with as the sentence would be manifestly inadequate in the circumstances of the case. [18] I agree with the submissions of Crown counsel. [19] The sentencing judge erred in principle as he failed to give proper and due consideration to the provisions of s.718(a) and (b) of the Code and overemphasized the rehabilitation objective in s.718(d) of the Code. As a result he imposed a sentence that is disproportionate to the gravity of the offence and is clearly unreasonable as it is outside the acceptable range for such a serious offence. See: R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. M.C.C.A., [1996] 1 S.C.R. 500; R. v. McDonnell, [1997] 1 S.C.R [20] Rehabilitation does have its place in sentencing but it has to be balanced against the other purposes, objectives and principles of sentencing as set forth in ss.718, and of the Code. The application of these purposes, objectives, and principles must be assessed on the basis of the circumstances peculiar to the case and the offender. A fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and such cannot be said of the sentence being appealed from in this case. [21] The respondent pled guilty to the offence of aggravated assault contrary to s.268(1) of the Criminal Code. Section 268(2) of the Code states that every one who commits an aggravated assault is liable to imprisonment for a term not exceeding fourteen years. This gives an indication of the gravity of such an offence. The seriousness of the attack on the victim is clearly illustrated in the agreed statement of facts and in the medical reports of Dr. Grant where he describes the injury to the victim's throat as life threatening. Another serious concern about this case is the manner in which the assault was carried out by the respondent. There certainly was premeditation involved as the respondent went to the victim's apartment armed with weapons to threaten people for drug debts. He gained access to the victim's apartment by false pretences. He was carrying a knife and a club. He used the knife to inflict an extremely serious throat wound to the victim as well as stabbing him in the chest. The respondent also has a significant, lengthy criminal record of 15 prior convictions dating back to May 6, 1984, with the most recent one being December 11, At least one of these prior convictions involved violence. He has served two three-year sentences as well as other sentences.

7 [22] A review of the authorities referred by Counsel to the court indicate that sentences vary depending on the circumstances peculiar to a particular offence or a particular offender. It is fairly obvious that there will be a fairly wide range of conduct that comes within the offence of aggravated assault. However, sentences imposed for similar offences where the circumstances relating to both the offence and the offender are substantially the same should be in the same range. [23] The Ontario Court of Appeal dealt with a sentence appeal for aggravated assault in The Queen v. Tusek, September 21, 1999, Docket C31139, where a sentence of two years less one day imprisonment and three years probation was imposed by the sentencing judge. Life threatening injuries had been inflicted on the victim. The accused was nineteen years of age with no prior criminal record. The Ontario Court of Appeal states at para.[13]: This sentence is at the very bottom of the acceptable range and it would have been open to the trial judge to impose a penitentiary sentence on this respondent. However, we have not been persuaded that the sentence requires our intervention, particularly in view of the respondent's age, his lack of prior record, and the lengthy pre-trial custody (one year). In our view, the sentence imposed in this case is not a substantial and marked departure from sentences customarily imposed. [24] The respondent, as I have already indicated, does have a lengthy criminal record and only served two and one-half months prior to sentencing. [25] The Provincial Court of this Province imposed a sentence of three and one-half years in R. v. Hann, October 22, 1996, for a charge contrary to s.268 of the Code. The accused stabbed his common law wife in the back with a butcher knife. He had a criminal record which included possession of a weapon and an assault on a police officer. DISPOSITION [26] I, therefore, in the circumstances of this case, grant leave to appeal, and allow the appeal. I set aside the sentence imposed by the sentencing judge and impose a sentence of four years in a Federal institution subject to the condition that the respondent is to be given credit for the time he has already served in the Provincial Correctional Institution since he was sentenced on March 10, I also make an order pursuant to s.109 of the Criminal Code prohibiting the respondent from possessing any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for a period of ten years after his release from imprisonment and from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

8 Carruthers The Honorable Chief Justice N.H. I AGREE: The Honorable Mr. Justice G.E. Mitchell I AGREE: The Honorable Mr. Justice J.A. McQuaid