Citation: R. v. Long Date: PESCTD 87 Docket: S-1-GC-71 Registry: Charlottetown

Transcription

1 Citation: R. v. Long Date: PESCTD 87 Docket: S-1-GC-71 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION HER MAJESTY THE QUEEN -against- JAMES ROBERT LONG BEFORE: The Honourable Justice K. R. MacDonald Steven L. Woodman - Solicitor for the Crown Kenneth A. Clark - Solicitor for the accused Place and dates of hearing Charlottetown, - Prince Edward Island February 12, 2001; April 12, 2001; April 19, 2001; April 25, 2001 Place and date of judgment Charlottetown, - Prince Edward Island

2 October 30, 2001

3 Citation: R. v. Long 2001 PESCTD 87 S-1-GC-71 HER MAJESTY THE QUEEN -against- JAMES ROBERT LONG Prince Edward Island Supreme Court - Trial Division Before: MacDonald J. Heard: February 12, 2001; April 12, 2001; April 19, 2001; April 25, 2001 Judgment: October 30, 2001 [5 pages] Criminal law - sentencing - evidence on sentencing. STATUTE CONSIDERED: Criminal Code of Canada, R.S.C. 1985, s Steven L. Woodman - Solicitor for the Crown Kenneth A. Clark - Solicitor for the accused

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5 MacDonald J.: [1] The accused pled guilty to a charge under s. 266(a) of the Criminal Code of Canada, namely, the commission of the offence of assault. Unfortunately, the parties were unable to agree on the facts surrounding the incident which necessitated the calling of six witnesses. [2] The victim, a young woman aged 25, stated that she and her room mate went to a club on the evening of July 5, While there, she consumed five to six vodka and orange drinks. While at the club she met the accused, who was a former boyfriend. He invited her to come to a party at the apartment of James MacLean. At 2:00 o clock a.m. she returned to her apartment to get a 40 ounce bottle of rum. The accused accompanied her to her apartment and then to the apartment of James MacLean. [3] Some time after arriving at the MacLean apartment she went into the kitchen. In the kitchen was the accused, Chris Strickland and another person. She inquired about the location of her rum and said she was not going to leave without it. She said James MacLean grabbed her and said he wanted to see her breasts. The accused, she stated, was holding her arms and she struck him in the face with her elbow and he let go. When she turned around, the accused then punched her on the eye. [4] The victim stated that James MacLean then grabbed her between the legs. She then left while James MacLean was roaring at her to get out. She stated that where MacLean had grabbed her on the arm there were bruise marks. While at MacLean s apartment, the victim stated she had not kicked MacLean. She indicated that James MacLean had set his dog on her and she left the apartment. [5] The police were called and pictures were taken, which show bruise marks on her upper arms and slight discolouration under one eye. [6] The next morning the accused brought the victim her 40 ounce bottle of rum and apologized, as did James MacLean. Both MacLean and the accused stated that the victim was friendly to them at this time. [7] The victim s room mate had not stayed at the club with the victim, but had gone home earlier. She stated that when the victim came home from the

6 Page: 2 club, she saw bruises that were not on the victim earlier in the evening. She saw bruises on the victim s chest, arms and she had a swollen eye and was very upset. [8] James MacLean stated that the victim was loaded when she was at his apartment, hanging onto walls and had slurred speech. He stated that the victim had elbowed the accused in the eye and he asked her to apologize on two occasions and then hit her at which time they both freaked out and his dog became upset. [9] Mr. MacLean stated he told the victim to leave his apartment and she was cursing and swearing when he took her downstairs. At this time, he was holding her by the arms. He denied that he had asked to see her breasts or that he touched her chest area. He said the accused did not hold her. He said he had to restrain her while removing her from the apartment. [10] Mr. MacLean stated he saw the accused slap the victim on the face or mouth. Derek Strickland who shared the apartment with James MacLean and who was not drinking on the night in question, said he saw the victim elbow the accused in the face and saw him slap her. He saw James MacLean escort the victim out of the apartment with his hands on her shoulders and arms. He confirmed that the dog was growling due to the events that were occurring. [11] James Long, the accused, indicated he had seven to ten beer during the evening. He stated that the victim was mad when she came into the kitchen and as he walked behind her toward the fridge she elbowed him in the face. He stated he asked the victim to apologize on three occasions or he would smack her. He denied there was any horsing around in the kitchen with the victim. The accused stated that Mr. MacLean had to physically remove her from the premises because she would not leave without her rum, and they could not find it. There was a lot of struggling on the stairs. He denied all the allegations of misconduct either by him or Mr. MacLean. He admitted to slapping the victim on the face. [12] The victim s allegation against the accused is that he punched her on the eye and held her arms, causing bruising. I accept the evidence that it was James MacLean who held the victim s arms when he was putting her out of his apartment. Whether the accused punched or slapped the victim in the face

7 Page: 3 makes little difference. The victim ended up with a slight bruise under her eye. The victim received a blow which is the charge against Mr. Long. I see no reason why evidence had to be called in this matter. [13] In her victim impact statement, the victim states her eye was black. The picture of her eye taken by the police following the incident does not show her having what would normally be called a black eye. It is also difficult to accept the affect the incident has had on her as outlined in her Victim Impact Statement. To attempt suicide a few days after the incident and then to start drinking heavily, all because of this incident, appears to be stretching the truth. [14] The accused is charged under s. 266(a) of the Criminal Code which carries a maximum sentence of five years imprisonment. [15] The purpose and principles of sentencing are set forth in s. 718 of the Code. The fundamental principle set forth in s is that a sentence must be proportionate to the gravity of the offence. Further, s of the Code states; (1) that a sentence should be increased or decreased to account for any relevant aggravating factors or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) that the offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; (4) that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [16] An assault is the intentional application of force without the victim s consent. However, the Code does provide for the consideration of mitigating factors, if they are present, in sentencing an accused. I find that there are mitigating factors in this case. [17] The victim was drinking and demanding her liquor be returned to her. She elbowed the accused in the face. The accused demanded an apology which he did not receive and then struck the victim on the face. Certainly he was unjustified in resorting to striking the victim after the refusal of an apology. [18] The accused is 26 years of age with a conviction under s. 266 of the Code

8 Page: 4 in 1994 for which he received probation and a conviction under s (1)(a) in 1999 for which he received 36 months probation. The accused is said to have gotten his life in order and is supporting his eight year old child. The accused pled guilty at an early stage of the proceedings. [19] The aggravating factor is the accused s past criminal record for similar type offences, which is mitigated to some extent by reason of the passage of time, since the offences occurred and the fact that there is an element of premeditation involved. The accused did not automatically strike the victim after being himself struck. He asked the victim to apologize and then struck the victim when no apology was forthcoming. Sentence [20] The Crown asks for a jail sentence, while the accused seeks a community based disposition of ten days or less. The accused originally requested a presentence report, however later decided not to participate in the preparation of the report. Consequently, the usual information to be found in such a report is not available. [21] In considering the sentence to be imposed, the accused s record and the circumstances of the case are of primary importance. The accused s history of criminal activity relates to offences against a person. He received probation on both previous charges. The first charge in 1994 is now reaching the dated stage. The second offence is three years previous to the present offence. [22] The circumstances would indicate that this was a tit for tat situation. However, the accused s response was unnecessary and too severe. I would impose a term of imprisonment of fourteen days. A penitentiary term or a noncustodial term are not appropriate. [23] Section of the Code states that if the court is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing, the court may order the sentence be served in the community in compliance with the conditions of a conditional sentence order. [24] I do not consider that the accused is a threat to endanger the community

9 Page: 5 and that serving a community based sentence would be consistent with the fundamental purposes and principles of sentencing to the safety of the community. Consequently, I order the accused to enter into a conditional sentence order with the following conditions: (1) Keep the peace and be of good behavior; (2) Appear before the court when required to do so by the court; (3) Report to a supervisor within two days after the making of the conditional sentence order and thereafter when required by the supervisor and in the manner directed by the supervisor; (4) Remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the supervisor; (5) Notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation; (6) Remain in your home between 7:00 p.m. and 6:00 a.m. each day except when occupied in the course of employment during those hours; (7) Refrain from any contact, direct or indirect, with the victim. (8) Pay a victim fine surcharge of $100. October 30, 2001 J.