Citation: R. v. Sheppard Date: PESCTD 56 Docket: S-1-GC-90 Registry: Charlottetown

Transcription

1 Citation: R. v. Sheppard Date: PESCTD 56 Docket: S-1-GC-90 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION HER MAJESTY THE QUEEN - against - FREDERICK FRANCIS SHEPPARD BEFORE: The Honourable Chief Justice K. R. MacDonald Valerie A. Moore - Solicitor for the Crown Steven L. Woodman - Solicitor for the accused Place and date of hearing - Charlottetown, Prince Edward Island March 9, 2001; May 28 and 29, 2001 Place and date of judgment (oral) - Charlottetown, Prince Edward Island May 29, 2001

2 Place and date of judgment (written) - Charlottetown, Prince Edward Island June 8, 2001

3 Citation: R. v. Sheppard 2001 PESCTD 56 S-1-GC-90 HER MAJESTY THE QUEEN - against - FREDERICK FRANCIS SHEPPARD Prince Edward Island Supreme Court - Trial Division Before: MacDonald C.J. Heard: March 9, 2001, May 28 and May 29, 2001 Oral decision: May 29, 2001 Judgment: June 8, 2001 [9 pages] Criminal law - sentencing - manslaughter - agreement on a recommendation sentence. CASES CONSIDERED: R. v. Lemay (1998), 127 C.C.C. (3d) 528; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Fennell, S-1-GC-92 (unreported) ; R. v. Jason Carmen Cerasuolo (2001), 151 C.C.C. (3d) 445. Valerie A. Moore - Solicitor for the Crown Steven L. Woodman - Solicitor for the accused

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5 MacDonald C.J.: [1] The accused, aged 34, has been charged with second degree murder for the death (on December 10, 2000) of his commonlaw spouse, Kimberly Byrne, aged 30. On February 22nd, 2001, the accused waived his preliminary inquiry, and at his arraignment in the Supreme Court on March 9th, 2001, offered a guilty plea to manslaughter, pursuant to s. 606(4) of the Criminal Code of Canada. The Crown indicated, on the record, its consent to this plea on the basis that there would be a joint recommendation of ten years imprisonment. [2] The parties have filed an agreed statement of facts of some twelve pages setting forth the details of the events that occurred on December 10th. The Crown and defence have recommended a ten year sentence. The facts were read into the record yesterday, and I need not go into any details of the facts. The facts show that the accused and the victim, Kimberly Ann Byrne, had been in a commonlaw relationship for some ten years. There is no evidence of any prior physical abuse between the parties. In the pre-sentence report, the Byrne family stated that the deceased never mentioned being physically abused, but feel it was due to her pride. It was also reported that the victim planned to leave the accused after Christmas, indicating that there might have been difficulties within the family. It would certainly appear that the accused abused alcohol. [3] On December 10th the accused was drinking heavily, consuming during the course of the day a pint of rum and some twenty beer. During the evening the accused, the victim, and their young seven year old son were at a neighbour s, John Allan Hughes, where the drinking was occurring. The victim is reported to have had eight to ten beer. This is an excessive amount, but there is no evidence it plays any part in the events. During the evening, the accused and the victim were arguing. The accused was in a bad humour. [4] The victim and the son left around 11:00 p.m. in her vehicle, and the accused was forced to walk home, some two kilometres, on a very cold night. The neighbour called the victim, telling her the accused was on the way home and in a bad mood and she should return to his house, with the son. This occurred at approximately 11:30 p.m. [5] Upon arriving home, and not finding Kimberly, the accused made phone calls to her sister over the next couple of hours inquiring as to Kimberly s

6 Page: 2 whereabouts. At 2:00 a.m. Kimberly decided to go home, arriving shortly thereafter. Cuyler, the son of the accused and the victim, said his father gave his mother a bloody nose, that he went to his bedroom where he cried and covered his ears so he would not hear the thumping and screaming and bad words his father was saying. He also saw his father kicking his mother while she was on the floor. [6] The assault occurred in the bedroom, living room and kitchen. The accused stated in his statement to the police that he believed something was going on between Kimberly and his neighbour. [7] At 3:41 a.m. the accused called the Byrne household and told the victim s brother, who answered the phone, that Kimberly was home, that she was fucking John Allan Hughes, and he was going to rip the neighbour s place apart. [8] The accused then left the home and went to the home of three neighbours relating the fact that he had given the victim a black eye and was going to kill Hughes. Two of the neighbours saw blood on the knuckles of one of the accused s hands. No one appeared to have considered the incident which the accused was speaking of as serious or that he would cause harm to Hughes. This substantiates other evidence that the accused was not known as a violent person. [9] After leaving the last neighbour s residence at 5:30 a.m., the accused went home. He found the victim on the floor and he gave her mouth to mouth resuscitation, and called 911, which call was recorded at 5:42. The statement of facts reads: In his call to 911, which was logged at 5:42 a.m., he said, I need an ambulance right here in Cardigan right now... I just came home here and she s on the floor and she s in a puddle of blood there, she s out... Jesus, she s gotta go, she s gotta go somewhere... When asked what had happened, he replied, Well we were fighting here earlier, but I don t know, I just came home here and she s laying on the floor in a puddle of blood. During the call, he kept telling them to get an ambulance over right away, and there were pauses during which the dispatch operator said, It almost sounds like he s trying to get her to breath. (Later, Sheppard told a paramedic that while on the phone to 911, he had dropped the phone to help Kim.)

7 Page: 3 When the paramedics arrived at 5:55 a.m., they found Fred Sheppard kneeling over Kim Byrne, who was on the kitchen floor. There was blood on the floor under her. Sheppard was very upset, and was saying, Help her, do something for her. In the words of one of the emergency response personnel, Sheppard was very emotional and he kept pleading with the paramedics to work harder on her. Fred Sheppard had apparently found Kim on her stomach, and had rolled her over onto her back. He had blood around his mouth. From this, they inferred he had been giving her mouth-to-mouth resuscitation (as Kim had blood on her face). They moved him out of the way, and upon examination of Kim, found she had no vital signs. Efforts to resuscitate her proved futile, both at the scene (for approximately 15 minutes) and at the hospital (where doctors worked on her for over half an hour) In his statement to the police, Fred Sheppard s recall of some of the details was poor. He admitted he had been angry over having to walk home in the cold, and about not knowing where Kim and Cuyler were until they got home (sometime after 2:00 a.m.). He believed that Kim had been having an affair with his friend, Hughes. He said there had been an argument when she and Cuyler arrived home, and that he had hit her. He believed she had still been standing when he left, and he had shoved her out of the way when he went out the door. He said...i swear to God I didn t mean to kill her. It started out as a fight, that s it. He said that he had destroyed his family, he can t face his son, and that if he could bring her back, he d do it right now. When exhorted by the police to think back to try to recall more details, he said, I ll be thinking back for the rest of my life. Sheppard s right hand was very swollen (although not broken). He admitted he had injured it in striking Kim. [10] The accused had been co-operative throughout. The victim was 30 years of age. Both were of approximately the same height and weight. It is estimated that the accused s blood alcohol reading, at around 2:15 a.m. would have been approximately 180 to 267. If the offence occurred at 3:41 when he made the last call to Kimberley s parents residence, his blood alcohol reading would have been 166 to 239. It was agreed that expert evidence on alcohol absorption indicated that there would definitely be a detrimental effect on cognitive function and motor skills at both these levels. The blood alcohol

8 Page: 4 level of the victim at the time of her death was measured at 126. [11] There were no broken bones, but the victim did have numerous abrasions and bruises. The cause of death was a blunt force trauma to the head caused by the accused s foot or fist. There was no evidence of the use of a weapon. The victim also had abdominal trauma. [12] The record of the accused consists of an impaired driving conviction in 1991 and a summary conviction assault on a male in [13] The victim was an L.N.A. and the accused who has completed grade twelve worked in various labour fields is described as a good, friendly worker. [14] In her summations yesterday, Ms. Moore correctly summarized the legal reasons why the Crown accepted a plea of guilty to manslaughter. In my opinion, the accused could not have been found guilty of first or second degree murder. To be guilty of murder, the Crown would have had to prove that the accused intended to kill Kimberly. I believe the facts, including the degree of the accused s intoxication, would not have resulted in a finding that the accused intended to kill Kimberly. The Crown had little choice but to accept a guilty plea to manslaughter. It is important to understand the distinction between murder and manslaughter. To be guilty of murder, the person must be shown, beyond a reasonable doubt, to have intended to kill the victim. Without even considering other facts in this case, the accused s degree of intoxication would more than likely have been sufficient to find the accused not guilty of murder. The person must be shown to have a clear mind to understand what his actions will cause. Consequently, if it could not be established that he intended to kill Kimberly, the Crown was left with manslaughter. With manslaughter, it is not necessary to prove the intent to kill. It is only necessary to show that the accused intended to cause harm to the victim. [15] Freddy Sheppard did not intend to kill Kimberly, but he did intend to cause harm to her and that is what has to be dealt with. Kimberly was intoxicated that night and drove her vehicle while intoxicated. She had Cuyler with her and could have been in an accident that killed him. She would not have been charged with murder, because it would undoubtedly be proven that she did not intend to kill him, but she could have been charged with

9 Page: 5 manslaughter, or criminal negligence causing death. She could have killed someone else walking on the road, but again, there would have been no intent to kill and no charge of murder would have succeeded. There are many situations where persons do a certain act not intending other consequences to occur. [16] I am not unaware of the emotion that this incident has caused the families involving marching with signs around the courthouse, but judges and courts cannot respond to the public perception of what should be justice when the law clearly sets forth the road that the judge or court must follow. To be placed in the position of Kimberly s family is a wish that no person would willingly accept. It is a thought that we do not even want to think about. To know that your daughter or sister has been beaten to death is truly horrible. To want to inflict the severest punishment possible on the perpetrator of that crime is the immediate reaction, but vengeance is not an integral part of our legal system. We are not living in a country where an eye for an eye theory of justice is carried out. We have risen above that type of system and as much as one may be hurting and want revenge, our healing must be achieved by means other than revenge. [17] However, I am not here today to preach about how we should best satisfy the needs of persons so that lives can, hopefully, some day return to a degree of normalcy. [18] I must follow the law. I cannot strike out and make new laws where the law is clear. Attempting to make new laws would only prolong closure for everyone. You heard yesterday that the Crown would have been calling some 26 witnesses. The defence would also have had witnesses. The child would have been a likely witness. It would have been a lengthy trial. There would be appeals and the matter would drag on. To bring closure is the reason I decided to give this decision quickly. [19] As you heard yesterday, there is a wide range of sentence in manslaughter cases. No one sentence can fit all cases. The battered woman, with no record, who shoots her spouse because of fear might receive a suspended sentence, while a person with a long history of criminal activities who brutally kills someone would receive a much lengthier sentence. Between these extremes, there are thousands of situations that are different and all

10 Page: 6 must be dealt with differently. The accused who kills with one blow, the person who kills with five or six blows, the person who kills by hacking a person into pieces; all these situations are different and must be treated individually. [20] There is no minimum sentence for manslaughter, except if a firearm were used in committing the offence. For this reason, the Quebec Court of Appeal was correct when they stated at p. 555 in R. v. Lemay (1998), 127 C.C.C. (3d) 528 that few crimes in the Criminal Code seem to cause as many problems for judges in sentencing as manslaughter. In the same case it was also pointed out that manslaughter in a domestic setting will usually result in a severe penalty. [21] Both counsel have cited numerous cases where the Court of Appeal of various provinces have confirmed or imposed sentences in the range of eight to twelve years imprisonment. [22] The case of R. v. Stone, [1999] 2 S.C.R. 290 was relied upon by both counsel. This was a case that ultimately wound up in the Supreme Court of Canada. The accused had stabbed his wife 47 times, disposed of the body and fled to Mexico before returning to Canada. He was found guilty at trial and sentenced to seven years imprisonment. The British Columbia Court of Appeal confirmed the sentence, as did the Supreme Court of Canada. [23] A number of Prince Edward Island cases have also been cited and they also indicate that in manslaughter cases involving the death of a spouse or partner, varying lengths of sentence have been given. In the most recent case, R. v. Fennell, S-1-GC-92 (unreported), where the accused had beaten his wife and then left her to die, the accused received a sentence of fourteen years. But the aggravating facts in that case were more numerous than here. In Fennell, there had been numerous incidents of assault upon the victim by the accused. In such a case, prior incidents of abuse is an aggravating factor requiring a more lengthy sentence than a case where there has not been previous assaults. The accused in Fennell also had a criminal record relating to some of these incidents, which is not the case here. [24] The cases that have been cited, especially that of R. v. Stone from the Supreme Court of Canada, guide me to the area of a sentence that I must give. I cannot give a more markedly severe sentence on facts that are similar to facts

11 Page: 7 in those cases. I cannot give life imprisonment, because that is only for the case that has the worst offender and the worst set of facts. [25] There is a principle in law called stare decises which means that previous cases are authoritative and binding and must be followed. That means I must be guided by the sentence given in other cases. If judges were to go off in all different directions in their decisions, there would be no certainty. In fact, even when judges know they have to follow precedents, the decisions given are often criticised because the decision seemingly does not follow the precedents. Yesterday, when the facts of certain cases were given, I thought I detected disbelief at some of the sentences given. I must say that I was a little surprised myself on two or three occasions. However, I know that the summary given was only a summary of a few words probably taken from a judgment of several pages. A complete reading of the decision would probably have disclosed a different picture. [26] I say this simply to try to explain what a judge can and cannot do. If the range of sentences in manslaughter cases is to be changed from what has been said to be a range of eight to twelve years imprisonment, then it must be the highest court in the country that must do that, or at least the Court of Appeal, or Parliament should provide legislation to set a higher range for those guilty of manslaughter. Until that is done, the discretion of the Court is limited to following the range of sentence set forth in other cases. [27] I am aware that s of the Criminal Code provides that a court, in sentencing, shall consider as an aggravating factor those matters set forth in s (a). [28] In addition to being required to follow precedents (other decided cases), I must also give consideration to the agreement reached by counsel for a sentence of ten years. I do not have to follow what has been agreed on by the parties, but if I am to depart from what has been agreed upon, I must have good reason to do so. [29] In the case of R. v. Jason Carmen Cerasuolo (2001), 151 C.C.C. (3d) 445, the Ontario Court of Appeal said on January 24th of this year: [8] This court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the public

12 Page: 8 interest and the sentence would bring the administration of justice into disrepute; e.g. R. v. Dorsey (1999), 123 O.A.C. 342 at 345. This is a high threshold and is intended to foster confidence in an accused, who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge. [9] The Crown and the defence bar have cooperated in fostering an atmosphere where the parties are encouraged to discuss the issues in a criminal trial with a view to shortening the trial process. This includes bringing issues to a final resolution through plea bargaining. This laudable initiative cannot succeed unless the accused has some assurance that the trial judge will in most instances honour agreements entered into by the Crown. While we cannot over emphasize that these agreements are not to fetter the independent evaluation of the sentences proposed, there is no interference with the judicial independence of the sentencing judge in requiring him or her to explain in what way a particular joint submission is contrary to the public interest and would bring the administration of justice into disrepute. [30] A sentence of ten years imprisonment would not in this case bring the administration of justice into disrepute because it is in the range of sentences that have been imposed in manslaughter cases in similar factual situations. [31] Section 718 of the Criminal Code sets forth certain principles of sentencing which I find are adequately addressed by a sentence of ten years imprisonment. In fact, had the agreement on sentence not been agreed upon at ten years, the accused might possibly have received a lesser sentence, as evidenced by the Stone case where the Supreme Court of Canada approved of a seven year sentence. [32] I have dealt more than I usually would with the reasons why a judge must follow the law, which here, means sentencing practices set forth by other judges and courts. I have done this to attempt to explain why a ten year sentence would be appropriate. [33] A lengthy and protracted trial would not have achieved more, except it would have added to the agony of all involved. Unquestionably this tragedy was caused by alcohol. The day that we can get across to people that it is not acceptable to consume 6, 8, 10, 12 or 15 beers or drinks over a continuous period of time is the day we will greatly reduce family violence. Daily this type of drinking conduct comes before the courts in this province, because of some

13 Page: 9 form of criminal conduct that has resulted from the misuse of alcohol. [34] While we appear to have driven the smoker out of many buildings, we have done nothing to address the problem of the irresponsible drinker. This case did arise from irresponsible drinking. The result has been a tragedy for all. In one of the letters submitted on behalf of the accused it was written: I have nt forgot the good turns you have done for me. It is to bad that the dam liquor got such a hold on you, but it is what happens. It gets people into bad trouble. [35] I do not believe the accused is an inherently violent man. The evidence does not speak of him being violent, and I do not believe Kimberly felt he was violent or she would not have returned home that night. It was liquor that changed him from a non-violent person to a violent one. It took over his reasoning ability. [36] He has expressed remorse, actually, from the moment he returned home and found Kimberly dead on the floor. His attempt at mouth to mouth resuscitation is an indication of immediate remorse. This does not excuse his actions, but it is one of the mitigating factors that must be considered. [37] Because of his actions, Cuyler s life will be forever changed. He will no longer have a mother and will not know his father for years to come, if ever. Everyone is affected. [38] I have read the victim impact statements of Jason Byrne, Kimberly s brother; Jamie Byrne, another brother; Leonard and Margaret Byrne, parents of Kimberly; Kerri Byrne-Mossman, sister of Kimberly; and Cuyler, the son. They all express their shock and sorrow of finding out that Kimberly had died, and that they will never see her again. Their sadness is made greater because of the senselessness of it all. [39] That December day did not start off with the accused thinking of killing Kimberly, or Kimberly thinking she would be killed. It was a progression of events that led the accused to be in a condition that he was unable to control. He did not intend to kill Kimberly, but Kimberly is dead. It is for this unintentional killing that I must sentence the accused.

14 Page: 10 [40] Mr. Sheppard, I would ask you to please stand. You have pled not guilty to s. 235(1) of the Criminal Code, second degree murder, and with the consent of the prosecutor you have pled guilty to the offence of manslaughter, pursuant to s. 236 of the Criminal Code. I accept your plea of guilty to s. 236, and your plea of not guilty to the charge pursuant to s. 235(1) and consequently find you guilty of manslaughter in the death of Kimberly Ann Byrne. [41] Further, in relation to the charge of manslaughter, I sentence you to ten years imprisonment. [42] Furthermore, pursuant to s. 109(1)(a) of the Criminal Code, I order that you be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for life. [43] Finally, pursuant to s of the Criminal Code, you are required to provide a DNA analysis. June 8, 2001 C. J.