PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION. Her Majesty the Queen. against. Corey Blair Clarke

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1 Citation: R v Clarke Date: PCSCTD 10 Docket:S 1 GC 384 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Her Majesty the Queen against Corey Blair Clarke Before: The Honourable Chief Justice Jacqueline R. Matheson Appearances Darrell Coombs QC for the Appellant Kent Brown QC for the Respondent Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island October 6, 2004 Charlottetown, Prince Edward Island February 16, 2005

2 Citation: Date: PCSCTD Docket:S 1 GC 384 Registry: Charlottetown Her Majesty the Queen against Corey Blair Clarke Matheson CJ Supreme Court of Prince Edward Island - Trial Division Date of Hearing - October 6, 2004 Date of Judgment - February 16, 2005 ( 3 pages) Summary Conviction Appeal - Sentencing - whether suspended sentence appropriate in a domestic assault Cases Referred to: R v. Shropshire (1995) 102 C.C.C. (3d) 193, R v. W.(G.) C.C.C. (3d) 123; and R. v. Proulx (2000) 140 C.C.C. (3d) 449; R. v. Farrell, [1995] P.E.I.J. No. 147; R. v. A.M.M., [1990] 80 Nfld & PEIR 288 (PEISCAD); R. v. Inwood (1989), 48 C.C.C. (3d) 173 Appearances Darrell Coombs QC, for the appellant Kent Brown QC, for the respondent

3 Matheson CJ.: [1] The respondent pleaded guilty to a charge of assault causing bodily harm, contrary to s. 267 of the Criminal Code. He was given a suspended sentence and placed on probation for 18 months, including 30 hours of community service. The Crown now appeals this sentence on the grounds that it is unfit or improper considering the circumstances and nature of the offence and it is inadequate as a deterrent to the respondent and others who might commit the same or similar offences. [2] The facts on which the Crown relies are as follows: At 7:48 a.m, , Debbie Miles contacted the police and reported that her daughter Melissa had been assaulted by her boyfriend Corey Clarke. Csts. Davies and Flynn met with Mrs. Miles and her daughter at QEH. At that time it was noted that Melissa had a cut in the centre of her forehead approx. 50 cm in length. It was later learned that the wound required fours stitches to close. Subsequent investigation revealed that the injury to Melissa was caused when Mr. Clarke threw a beer bottle at her. Cst. Flynn contacted Ms. Jessica Cahill by telephone and learned that Melissa and Mr. Clarke along with a group fo friends had been out earlier in the evening. Upon returning to their apartment at 266 Grafton St. all were sitting in the livingroom when Mr. Clarke picked a beer bottle off the table and threw it at Melissa. Before throwing the bottle Mr. Clarke was heard telling the person sitting next to Melissa to duck. Standard of Review [3] To succeed on this appeal, the appellant must establish that the sentence was demonstrably unfit. The Supreme Court of Canada in R v. Shropshire (1995) 102 C.C.C. (3d) 193, R v. W.(G.) C.C.C. (3d) 123; and R. v. Proulx (2000) 140 C.C.C. (3d) 449 provides guidance to appellate courts in considering whether a sentence is fit. Lamer CJ in Proulx stated at p. 499: [123] In recent years, this Court has repeatedly stated that the sentence imposed by a trial court is entitled to considerable deference from appellate courts...in M.(C.A.), at para 90, I wrote: Put simply, absent an error in principle, failure to consider an appropriate factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with the discretion to determine the appropriate degree and kind of punishment under the Criminal Code. [4] The appellant asserts there were errors in principle in this case in that the sentencing judge failed to give sufficient weight to the aggravating factors and the

4 Page: 2 sentence imposed does not adequately address two of the important objectives of s. 718 of the Criminal Code, deterrence of the offender and others from committing similar offences and the promotion of a sense of responsibility in those offenders. The appellant argues that the imposition of a suspended sentence did not advance the objectives and goals of s. 718 of the Criminal Code. [5] The appellant contends the trial judge gave no weight at all to the injury suffered by the victim, stating that the extent of the injury, the effect of the injury and the psychological effect of being hit in the face with a beer bottle were not taken into consideration by the trial judge. The appellant states the potential for serious injury and the degree of callousness and intention to inflict serious injury, takes this case out of the ordinary. In R. v. Farrell, [1995] P.E.I.J. No. 147, in discussing the appropriate sentence, the Court focussed on the culpability of the accused, as well as the degree of bodily harm, as a factor to be considered by the sentencing judge. Chief Justice Carruthers stated at paras. 34 and 35: It, therefore, appears from these authorities that the court in sentencing an accused on a charge of assault causing bodily harm should, in the words of Clayton C. Ruby at p. 141 (4th ed), focus primarily, but not exclusively, upon the culpability of the accused....while the degree of bodily harm is a factor which the sentencing judge takes into consideration, as a circumstance surrounding the commission of the offence, it should not be given undue weight in arriving at a fit sentence. [6] This case is a matter of domestic violence as the parties were living together at the time. In R. v. Inwood (1989), 48 C.C.C. (3d) 173, Howland, C.J.O. stated:... Domestic assaults are not private matters and spouses are entitled to protection from violence just as strangers are. This does not mean that in every instance of domestic violence a custodial term should be imposed but it should be normal where significant bodily harm has been inflicted in order to repudiate and denounce such conduct.... In R. v. A.M.M., [1990] 80 Nfld & PEIR 288 (PEISCAD) the court held that deterrence is the paramount consideration in sentencing in domestic assaults and the protection of potential victims, particularly vulnerable ones such as women and children, must be given serious consideration. Mitchell JA stated that the court should impose jail terms for such offences, unless the assault was of a very minor nature or there were strong extenuating circumstances. The appellant submits this was not a minor assault and there were no extenuating circumstances which could justify the sentence. [7] The appellant asserts that the sentencing judge placed too much emphasis on the fact that the accused had no prior record. He made this deliberation at the expense of the victim and failed to give proper consideration to the directions of the court in R. v.

5 Page: 3 A.M.M. The appellant contends the sentence is unfit because it was too lenient, is not a deterrent to the accused and others and the nature of the assault requires a stronger sentence - not necessarily jail time but a stronger punishment than a suspended sentence. [8] The respondent asserts the sentence is not unfit as the facts before the trial judge were minimal. I have reviewed the submissions made to the trial judge by Crown and defence counsel and they contain the facts relied on by the Crown on this appeal. The Crown on appeal is not asserting the trial judge should have considered prior acts of domestic violence, as this issue was not proven by the Crown at the sentencing. The respondent was heavily intoxicated on the night of the offence, blacked out and had no independent recall of the incident. In his comments, the trial judge indicated the lack of explanation for the assault caused him difficulty and he queried whether or not the respondent intended to cause an injury, because he could not recall what happened or why. [9] The Crown relies on jurisprudence written prior to the amendments to the Criminal Code in September, 1996, providing for reform of the Code sentencing provisions. One of those amendments directs the court to consider all available sanctions other than imprisonment that are reasonable in the circumstances (s (e)). [10] The trial judge can only sentence on the proven or admitted facts before him. The fact he does not specifically refer to each fact, as outlined by counsel, does not imply he has not considered them. Upon reviewing his comments, I find the trial judge did consider the extent of the of the victim s injury and the circumstances surrounding it. [11] In this case, the trial judge was dealing with a first time offender in a domestic situation. The Crown had not proven a prior pattern of domestic violence. While the incident itself could have had very serious ramifications for the victim, fortunately the blow did not result in serious injury to her. The trial judge can only consider the actual bodily harm, not potential bodily harm to the victim. The accused entered a guilty plea, expressed remorse and was willing to participate in counselling or rehabilitation as required. He is employed as well as attending school. In these circumstances, and considering the specific directions of the Criminal Code, a suspended sentence and probation, including 30 hours community service, while on the lower end of potential sentences, is not unfit. I do not find that the trial judge erred in principle, failed to consider an appropriate factor or over-emphasized appropriate factors. Accordingly, the appeal is dismissed. February 16, 2005 Matheson CJ