R v Moller, 2012 ABQB 259

Court of Queen ’ s Bench of Alberta Citation: R v Moller, 2012 ABQB 259 Date: 20120420 Docket: 110249083Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Matthew Hans Moller Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] The Accused has pled guilty to three charges on the day of his scheduled trial namely: Count 1: That he on or about the 3 rd day of March, 2011, at or near Edmonton, Alberta, did unlawfully wound, maim, disfigure or endanger the life of Shane Dauphinee, thereby committing an aggravated assault, contrary to

Section 268 of the Criminal Code of Canada . Count 4: That he on or about the 3 rd day of March, 2011, at or near Edmonton, Alberta, did knowingly utter, convey or cause Christopher Rimmer to receive a threat to cause death or bodily harm to Christopher Rimmer, contrary to

Section 264.1(1) (

a) of the

Criminal Code of Canada . Count 5: That he on or about the 3 rd day of March, 2011, at or near Edmonton, Alberta, did knowingly utter, convey or cause Keith Watson to receive a threat to cause death or bodily harm to Keith Watson, contrary to

Section 264.1(1) (

a) of the Criminal Code of Canada . [ 2 ] On March 3, 2011 the Accused viciously struck the Complainant, Shane Dauphinee, with a beer bottle outside Knight ’ s Pub in Edmonton. The injuries to Mr. Dauphinee were extensive, and potentially life threatening as evidenced in the medical documents tendered by the Crown. After the striking, the Accused held on to the broken beer bottle, and screamed at Mr. Dauphinee and his friends “ I will slit all your throats, punk ass bitches ” .

Sentencing Positions [ 3 ] The defence submits that an appropriate sentence, in all circumstances is one of 24 months, with credit given for both pre- trial custody at the Edmonton Remand Centre, as well as time spent under additional restrictive bail conditions, which total approximately 12 months and 28 days. [ 4 ] The Crown seeks a sentence of between 8 to 10 years. History of the Case [ 5 ] The Accused was detained by police on March 3, 2011.

He was denied bail by a Justice of the Peace that same date. [ 6 ] On April 13, 2011 the Accused waived his right to a preliminary inquiry, and elected to be tried by Court of Queen ’ s Bench Judge-alone. A trial date was not set until September 2, 2011, owing to disclosure of medical records and counsel ’ s need to discuss trial estimates and possible admissions. The trial was scheduled to commence on January 9, 2012. [ 7 ] On July 14, 2011 on bail review the Accused was granted judicial interim release with a $10,000 deposit, and a strict set of conditions.

On August 4, 2011 an amendment was made to the Accused ’ s conditions, to allow him to leave the Anchorage Program ’ s property with a written pass from a counsellor, for the purpose of meeting the program ’ s requirements. The Accused remained on these strict conditions until he turned himself in at the Edmonton Remand Centre on February 29, 2012 to await sentencing. There were no breaches of release conditions. [ 8 ] On January 9, 2012, guilty pleas were entered to aggravated assault and two counts of uttering threats before me.

Sentencing was held over to April 13, 2012 for the preparation of forensic assessment and pre-sentence reports. Circumstances and Background of the Offender [ 9 ] The Accused is a 28 year old man, born and raised in Nova Scotia. He relocated to Alberta for purposes of employment, after having learned a trade in the penitentiary system. Prior to these offences he was enrolled in an apprenticeship program through NAIT, and he was employed as well.

[ 10 ] As noted in Dr. Back ’ s FACS assessment, the Accused is alcohol dependent. He acknowledges the negative effects alcohol has had on his behaviour. He successfully completed the Anchorage Program on February 29, 2012. [ 11 ] The Accused is currently in a relationship with a woman he met on the Internet. He describes her as being employed, completely abstinent from intoxicating substances, kind, and supportive. [ 12 ] During an interview with the Accused, the Accused updated counsel on his personal progress as a result of his participation in the Anchorage Program.

He indicated that he gained tools to cope, not only with the temptation to drink, but also with conflict, without resorting to violence. [ 13 ] In the Forensic Assessment Community Services Report ( “ FACS Assessment ” ) the Accused related that the following events occurred while he was at the Anchorage Program: Early on in his residency at the Anchorage Centre, Mr. Moller accompanied other residents outside to the smoking patio. Though he does not smoke, he indicates that the smoking patio is where the majority of socializing at the Centre occurs.

While he was out there, a younger resident was hassling an older, disabled gentleman for his cigarettes and lighter. Mr. Moller describes the younger resident as trying to “ muscle ” the older one. Mr. Moller indicates that he intervened, pointing out to the younger resident that he should not be treating an old man that way. When the younger resident reacted by calling Mr. Moller a “ goof ’ and “ calling him on ” , Mr. Moller declined to fight, and relied on the counsellors to help calm him down. Later on in his residency, another incident occurred, where a fellow resident asked Mr.

Moller to play Monopoly with him. When Mr. Moller declined, the co-resident became angry, and started shouting and swearing. Mr. Moller reports that he reacted by retreating to his room, and avoiding the conflict. When asked how he had managed to avoid a physical confrontation on these occasions, Mr. Moller reported that he was both sober and gaining tools from Anchorage to deal appropriately with adversity. While at Anchorage, Mr. Moller was elected House Representative.

His role as House Representative meant that he was to delegate chores to other residents, and to provide them with support and advice if they felt they could not go to one of the counsellors. Though he indicates that returning to the Remand Centre has been difficult, as he went from “ the most supportive, nurturing environment ” to one where very few supports exist, he informs counsel that he has managed to continue to practise the lessons he learned at the Anchorage Centre. Mr. Moller reports that, while at Anchorage, he had a near relapse, and had planned to find a way to drink alcohol.

Fortunately, he indicates, he mentioned his plan to a friend at Anchorage, who talked him out of it. As a result, he informs, he has been sober for over a year. Mr. Moller provided counsel with a document he prepared entitled his “ 3-year plan ” on release from prison.

This plan includes regular attendance at Alcoholics Anonymous, arranging counselling with a psychologist he is comfortable with, securing full-time employment and continuing his apprenticeship, volunteering at the Salvation Army Food Bank, and offering to return to Anchorage to speak at the Step-Wise class. [ 14 ] The Accused ’ s mother is employed as a registered nurse in Dartmouth, Nova Scotia. She and her husband have three children. She describes her family as normal, hard-working, and middle class. [ 15 ] Ms.

Moller indicates that in early childhood, Matthew was “ quiet, studious, artistic, well behaved, and mannerly ” . She reports

remembering feeling so lucky to have had him. [ 16 ] She indicates that Matthew ’ s childhood was filled with sports and various activities. Both he and his brother were enrolled in Cub Scouts and Beavers. They were also involved in swimming through the Red Cross Program, and Matthew finished the highest level of swimming lessons. During the summers, he played soccer and baseball, and he played hockey from an early age until his mid-teens. [ 17 ] Ms. Moller describes a change in the Accused when he became a teenager. She indicates that she does not know what caused the change, but her son became defiant.

She wondered, at times, if she was too strict. As the Accused started breaking rules, their relationship became strained. While her husband was often working out of town, Ms. Moller felt that she was losing control over her son. Despite the difficult relationship Ms. Moller had with the Accused during his teen years, she reports that the only violence in the home was what she would describe as “ normal fights between brothers ” . [ 18 ] According to Ms. Moller, her relationship with the Accused improved in his early 20s. She relates that he is now very close to his family, and they love him dearly.

She states that she and the Accused talk on the phone often, and could talk for hours at a time. She has remained supportive of him throughout his life, and maintains that she knows him to be well intentioned. [ 19 ] When asked about the Accused ’ s criminal history and alcohol abuse, Ms. Moller estimates that she realized the Accused should not drink when he was in his late teens. She recalls telling him that she did not like him when he had been drinking, and that his personality seemed to change. She indicates, however, that by the time she realized her son was an alcoholic, he was an adult.

She recognized that there was nothing she could do to force him to stop drinking. [ 20 ] When her son was convicted of assault causing bodily harm and aggravated assault in 2008, Ms. Moller had hoped that his time in the penitentiary would “ dry him up ” , and “ turn him around ” . In some ways, she feels there was positive change in the Accused, following his term in the penitentiary. She reports that she was proud that he had learned a trade and was volunteering his time at the Humane Society.

She believes, however, that he still lacked insight into his problem with alcohol. [ 21 ] Charles Moller is the Accused ’ s older brother, by a year. He is employed on the oil rigs, and has joint custody of a 4-year-old daughter. [ 22 ] Charles reports that growing up, he and the Accused shared a normal, healthy childhood. He states that, despite the standard sibling arguments, he and his brother got along well. [ 23 ] Though Charles and the Accused were close in age, they did not hang around in the same groups or share the same friends.

Charles indicates that, in their teenage years, he and the Accused started to fight more. With their father away from home often, Charles assumed a role of disciplinarian in the Accused ’ s life. Charles relates that the Accused could be disrespectful and disobedient toward their mother. On occasion, if the Accused was rude or disrespectful, Charles would “ tune him in ” by “ laying the beats ” to him. [ 24 ] Charles admits that he felt his family sided with the Accused more than him. As such, he left home at the age of 17 to join the military.

For several years, he states, he did not care if he ever had a relationship with his brother again. [ 25 ] In 2010, Charles was faced with a decision about whether or not he would allow the Accused to live with him in Edmonton. He was raising a daughter, and did not want her to be subjected to negative influences. He had heard from family that the Accused had become more responsible, as well as more respectful. Charles states that he would not allow the Accused to come live with him until he had personally witnessed this change. He reports that he travelled to Nova Scotia, and met with his brother.

When he did so, he noticed a positive change in the Accused, extending even to a more mature manner of dressing. He, therefore, allowed the Accused to come live with him. [ 26 ] Like his mother, Charles Moller states that, despite the positive changes the Accused made in 2010, he continued to lack insight into his alcoholism. It was not until his entry into the Anchorage Program that the Accused began to address his problem.

Case Law [ 27 ] The Crown submits the following authorities that support its position of an 8 to 10 year period of incarceration: – R v Khan , 1991 CarswellOnt 900 , 49 O.A.C. 42 ; R v Amr , 2006 ABPC 8 ; R v Whitten , 2006 CarwellNfld 57 , 2006 NLTD 34 ; R v Ruddick , 2009 CarswellNS 669 , 2009 NSCA 126 ; R v Poker , 2006 CarswellNfld 281 , 2006 NLTD 16 . [ 28 ] In R v Peters , 2010 ONCA 30 the accused pled guilty to aggravated assault, following a preliminary inquiry. She swung a beer bottle at the victim ’ s head.

After it broke, she swung the bottle in a downward motion, causing lacerations to the victim ’ s face. The victim suffered lasting effects, including facial asymmetry, headaches, muscle spasms, and pain. The accused was an Aboriginal offender, 26 years of age, with a youth record for assault causing bodily harm. The confrontation at issue was directly the result of the accused ’ s use of alcohol. Gladue factors were taken into account. Sentence: 3 years probation. [ 29 ] In R v Perepelecta , 2004 ABPC 88 the Accused was found guilty, after trial, of aggravated assault. She struck the victim with a beer bottle.

The use of a weapon was found to be aggravating, but the court found it noteworthy that the accused did not first break the beer bottle and then cut the complainant. Lack of remorse was found to be an aggravating factor. The accused was a youthful, first-time offender, with a positive pre-sentence report. The assault was deemed to be an instantaneous reaction, with some provocation. Sentence: 12-month CSO. [ 30 ] In R v Veenhof , 2011 ONCA 195 the Respondent pled guilty to aggravated assault, and was convicted after trial of assault with a weapon.

He smashed a beer bottle over the victim ’ s head, and then stabbed him with a sword. Offender was youthful, without a criminal record, and the offence was out of character. Sentence: 14-month CSO (less 7 days). [ 31 ] In R v Rahme , 2010 ABQB 579 the Accused struck the complainant, an employee at a bar, resulting in scars to the victim ’ s face and sternum. He was convicted, after trial, of assault with a weapon to wit: a beer bottle. His background was largely pro-social, and a pre-sentence report stated he was a suitable candidate for community supervision. He had an unrelated criminal record.

Sentence: 15-month CSO. [ 32 ] In R v Ledoux , 2001 MBCA 72 the accused entered a guilty plea, following a preliminary inquiry, to aggravated assault. At 21 years of age, the accused had a criminal record for assault, and was on probation for that assault when the offence before the court was committed. The victim was a good Samaritan, trying to break up a fight the accused was engaged in. At the trial level, the accused was sentenced to 18 months. He appealed his sentence, arguing that he had made significant changes in his life while on bail.

Sentence: 18-month sentence upheld, but the accused having served 3 months, the rest to be served on a CSO. [ 33 ] In R v Jiang , 2011 ABQB 182 the Accused was found guilty after trial of aggravated assault. She struck the victim over the head with a wine bottle. The court found that she was acting in self-defence, but exceeded the necessary amount of force required by the situation. The accused was a well-educated woman, without a criminal record. A pre-sentence report indicated that she was a suitable candidate for community supervision.

Sentence: 45 days intermittent. [ 34 ] In R v Pulido , 2010 ONSC 3143 the Accused was convicted after trial of aggravated assault, after injuring the complainant hand in a bar fight. The accused attempted to hit the victim on the head with a beer bottle, but the victim blocked the blow. The bottle broke and impact and injured the tendons on the complainant ’ s hand. The injuries were serious enough to warrant surgery. The accused, at 35 years old, had a previous, dated, conviction for assault causing bodily harm.

There was suggestion that the accused had issues with alcoholism, though the court found that he seemed unwilling to address those issues. Sentence: 90 days intermittent.

[35] In R v MacDonald, 2O10 ONCA 178 the Accused was a first-time offender, found guilty of aggravated assault following atrial He threw a beer bottle at the complainant, and his friend threw a beer mug. Both items struck the complainant in the face, and thebeer bottle rendered his unconscious. He suffered lacerations and injury to his jaw. Sentence: One year . [36] In R v Campbell, 2004 MBQB 122 the accused struck one victim with a beer bottle he was previously broken, and threatenedto kill another. The consequences to the woman he assaulted could have been fatal, as he had narrowly missed an artery.

The court foundthat the accused had both anger management and alcohol dependency issues, and had done nothing to address these problems. Theaccused breached his conditions of release five times. As mitigating factors, the court found that the accused had the support of hisAboriginal community, and was a youthful offender. He also had no criminal record. Sentence: Global term of 15 months incarceration. [37] In R v O’Quinn, 2002 CanLII,4942 (ON CA) the accused participated in a group assault on the victim. The victim was struckmore than once with a beer bottle, as well as dragged, punched, and kicked.

He was in a coma for a period of time, and sufferedneurological damage, requiring speech and physical therapy. O’Quinn was 18 years old at the time, and had a youth record. Hisco-accused, Taylor, was 19 years old at the time, and also had a youth record. Both entered guilty pleas, and received 2-year (less a day)sentences. Their pre-sentence reports were positive. They appealed on the basis that the trial judge indicated that with a positivepre-sentence report, he would impose a sentence between 12 and 15 months. Their appeals were allowed.

Sentence: 15 months plus 3years probation. [38] In R v Runes, 1999 ABCA 29 the accused was convicted of aggravated assault with a beer bottle following a trial. After anargument, he struck the victim on the head with a beer bottle, then broke it and twisted it into the victim’s face. Prior to fetching the beerbottle, the accused tried to gouge out the victim’s eyes. The injuries to the victim’s face were severe. After trial, the accused was givenan 18-month conditional sentence. This was overturned on appeal.

Sentence: 18 months incarceration. [39] In R v Chickekoo, 2008 ONCA 488 the accused struck another woman on the head with a beer bottle during a fight. Thevictim’s injuries were life-threatening, and permanently disfiguring. The victim had lost mobility and all feeling on one side of her face.The accused was an Aboriginal woman with a troubled history. Sentence: 18 months incarceration plus 2 years probation. [40] In R v Stalker, 2011 BCSC 1401 the accused was found guilty, following at trial, of aggravated assault, assault with aweapon (conditionally stayed), and uttering threats.

He broke a beer bottle over the complainant’s face, leaving a fairly large scar. AVictim Impact Statement was read in court, indicating the assault had significant and long-lasting effects on the complainant. The courtfound that the assault occurred after a very brief exchange, and found, beyond a reasonable doubt, that there was no provocation. Thecourt further found that prejudice against Indo-Canadians was a motivation for the attack. Alcohol was also deemed to be a factor. Theaccused was young at the time of sentencing (22 years old) with a record for assault and assault with a weapon.

Significantly, the assaultwith a weapon conviction involved the use of a beer bottle. In mitigation, the accused had not consumed alcohol after the offence beforethe court, and expressed remorse, apologizing to the victim in Sentence: 2 years less a day on the aggravated assault, 90 days(concurrent) on the uttering threats . [41] In R v Cote, 2005 SKQB 508 the Accused pled guilty to aggravated assault against two complainants. He struck one in thehead with a beer bottle, and, in a continuous swing, used the broken beer bottle to slash at another.

One victim required stitches to hiseye, and received a broken finger. The other sustained nerve damage to his face. The accused had previous convictions for aggravatedassault and assault causing bodily harm. He did well while on release, and did not breach any of his conditions. Gladue factors weretaken into account, as were the 12 days that the accused spent in remand. Sentence: 2 years less a day . [42] In R v Irwin, 2004 BCCA 433 the appellant was 40 years old at the time of the offence. He was convicted, after a jury trial,of aggravated assault.

The assault consisted of breaking two or more beer bottles over the victim’s head. He then proceeded to kick andstomp at the victim until others interceded. After the assault, the appellant bragged about how hard he hit the victim, and claimed hecould have beaten him to death. The appellant had an extensive criminal record, with three prior convictions for assault. He had breachedthe terms of his bail while on release, both before trial and pending sentencing. Sentence: 4 years, less 1 year credit given for pre-trialcustody. [43] In R v Amr, 2006 ABPC 8 , 2006ABPC8 guilty plea to aggravated assault.

The accused approached the complainantin the washroom at a bar. The complainant was urinating at the time. The accused called the complainant a “French fag”, and then struck

him twice in the face with a beer bottle. The bottle punctured the complainant ’ s eye, leaving him with permanent vision problems. Accused had a youth record for assault causing bodily harm. The Court found, among many aggravating factors:

a) that the accused struck the victim twice, with the beer bottle becoming more dangerous on the second strike,

b) complete lack of remorse or empathy for the victim,

c) that the accused attempted to subvert the course of justice by concocting an alibi, and asking others to corroborate his story,

d) that the victim was alone, and the accused was with friends when he committed the assault,

e) that the accused breached his bail conditions by consuming drugs, breaking curfew, carrying weapons, and being in bars,

f) that the accused blamed the victim, and

g) that the motivation for the attack seemed to be hatred based on nationality and sexual orientation. Sentence: 4 years less credit for 1 year of pre-trial custody. [ 44 ] In R v Gholamrezazdehshirazi , 2008 ABPC 198 the Accused pleaded guilty to aggravated assault and uttering threats. After having a dispute with a dentist, he left the dentist ’ s office. He returned 45 minutes later with a broken bottle, and slashed at the dentist ’ s arm. On fleeing the scene, the accused stated he would be back to kill the complainant.

The victim was in surgery for four hours following the incident, and the surgeon concluded that one of the two slash wounds narrowly missed the basilic artery. Had the artery been hit, the victim might have bled to death. The accused was paranoid about Muslims and believed the dentist to be a Muslim. The act being motivated by bias and hatred was an aggravating factor. Sentence: 4 years less pre-trial credit. [ 45 ] In R. v.

N.H.N. , 2005 MBQB 129 the accused was 28 years of age, with a criminal record for 18 prior violent offences, including spousal assault, assault simpliciter , uttering threats, assaulting a peace officer, aggravated assault, and assault causing bodily harm. He entered a guilty plea to aggravated assault, after he repeatedly slashed the victim with a broken beer bottle in an attempt to steal a case of beer; Along with the many lacerations that required 91 sutures and staples in total, the victim suffered the loss of two teeth. The only mitigating factor was the guilty plea.

The accused showed no remorse and, though an alcoholic, showed no attempt to rehabilitate himself. He was deemed, by the court, to remain a high risk to the community. Sentence: 5 years. Application of Case Precedents to the Case at Hand [ 46 ] While each case above is distinguishable from the present one, and sentencing is an individualized process, the cases do assist the Court in determining the appropriate range. The defence submits that the cases provided in the upper range, between 4 and 5 years, contain serious aggravating factors, absent in the present case.

The defence submits that the cases provided suggest an upper range between 4 and 5 years. The aggravating factors in these cases include motivation based on bias or hatred and lack of remorse. [ 47 ] The Crown points to the Accused ’ s criminal record involving related offences. The Accused was convicted in April 2002 of robbery and sentenced to 18 months probation. The Accused was convicted of uttering threats in February 2008 and received a suspended sentence and 18 months probation.

Again in 2008 he was convicted of aggravated assault and assault causing bodily harm and received 2 years imprisonment on each count. [ 48 ] The Crown also has provided the Court with a written decision from that sentencing of May 8, 2008 now reported at R v Moller , 2008 CarswellNS 499 , 2008 NSSC 158 , 860 A.P.R. 12 , 269 N.S.R (2d) 12 . At paragraph 2 the Court describes the rather similar fact situation that has occurred in the present matter as follows: – 2 Count #1: The facts are not that complicated and have been reviewed this morning, that is the matter of aggravated assault on Bill McNamara.

Obviously Mr. Moller was at a party where the victim was in attendance. A dispute arose at that party, Mr. Moller left the event and some short time later returned for the purpose of settling up with Mr. McNamara. He made an uninvited entry into a residential premises with one other person, he went directly into an assault mode with Mr.

McNamara, and in the midst of that hit him in the head with a pool ball which caused a significant gash requiring medical treatment. [ 49 ] Before sentencing the Accused the Court reviewed the terms of the offender as follows: – 11 In terms of the offender, the court has the benefit of a pre-sentence report. Mr. Moller is a 23 year old man, single and with a grade 12 education but with aspirations for further educational opportunity. He has a history of youth convictions and an adult criminal record and was on probation at the time of these offences.

The report discloses an entirely functional family background and indicates that he has had all the benefits not available to so many offenders who pass through this courtroom. I admire these parents for standing with Mr. Moller through these charges and his other conflicts with the law over the past several years. One thing that the report discloses is that

Mr. Moller has a serious and long standing substance abuse problem and it is not one that he's fully prepared to acknowledge at the present time. It is the only reason that emerges as the cause for this violence. It is not one of those cases of a tough upbringing where a cycle of violence and abuse continues through the generations. Mr. Moller has a lot of reflecting to do on his substance issue before it is likely to be remedied. Another thing that the report discloses is that Mr. Moller has an ugly anger issue.

I accept it may be exacerbated by alcohol but it's a real problem and a problem that he does not acknowledge and I find so stated that in his health and lifestyle comments in the pre-sentence report. The report also indicates that Mr. Moller has done nothing to address anger and alcohol, I mean really done anything, even though they were identified as problems in his previous conflicts with the law.

To describe his efforts as genuine would be a grave overstatement or possible exaggeration. [ 50 ] The Court goes onto consider the aggravating factor of planning and deliberation in that case as follows at paragraph 16: – 16 Planning and deliberation is a negative factor. The crown indicated he could have stayed away but he had to go back. That is about anger and that is a very aggravating factor in my mind. The injuries to the victim are aggravating and the fact that it happened in a private residence, and not as in a bar is an aggravating factor, this is someone's home.

Effect of Pre-trial Custody [ 51 ] When the Accused was released in addition to the standard bail conditions, he was also ordered the following: – - That, prior to release, a letter from the Salvation Army Anchorage Program be remitted to both the Crown Prosecutor ’ s office and the accused ’ s supervisor, confirming his acceptance into the program and the duration of the program; - That he abstain absolutely from the consumption or possession of alcohol or non-prescription drugs; - That he consent to provide samples of his blood or urine to any peace officer who, on reasonable grounds, believes that he is in breach of his abstinence condition; - That he not be in possession of any weapons; - That he have no contact with the named complainants; - That, on release, he go directly, without any stops whatsoever, to the Salvation Army Anchorage Program for admission.

That he arrive at the Anchorage Program within one hour of release; - That he remain within the Anchorage Program ’ s facilities for the duration of their recovery program; - That, on completion of the Anchorage Program, he return immediately to the Edmonton Remand Centre. [ 52 ] Since the Anchorage Program requires that its residents absent themselves temporarily from its grounds in order meet program requirements, such as attend church and perform volunteer work, the Accused ’ s release order was amended on August 4th to accommodate the program ’ s requirement.

The Accused remained only able to leave Anchorage grounds with a written pass from a counsellor.

[ 53 ] The defence finds support for the credit for stringent bail conditions in the decision of R. v. Hilderman , 2005 CarswellAlta 1084 (Alta C.A.) . Conrad J.A. stated that: – ...this court has recently concluded that it is within the trial judge ’ s discretion to consider time served on judicial release under conditions akin to house arrest when imposing an ultimate sentence... We also appreciate the fact that serving a term of house arrest is not necessarily synonymous with serving an equal term of imprisonment. Nonetheless, this court has held that there can be a credit.

We note that a pre-trial custodial term often gets credit on a two-for-one basis and sometimes even a three-for-one basis.... Here the t6 months ’ house arrest had been incurred by these respondents and we cannot say that it was an error for the trial judge to credit that time in hill, providing it was not done simply as an automatic mathematical deduction. (Para. 18, 21) [ 54 ] The defence requests that, under such onerous bail conditions, the Accused be entitled to pre-trial credit on a 1 to 1 ratio.

Conclusion [ 55 ] The Accused has pled guilty to one count of aggravated assault, and two counts of uttering threats to cause death or bodily harm to two of the Complainant ’ s friends who were not injured in the incident outside an Edmonton Pub on March 3, 2011. The Accused admits that he hit the Complainant with a beer bottle at a bar after having consumed three or four drinks at a Casino earlier, followed by a few beers and five or six double vodkas and shots.

He estimated that he had consumed a total of 12 beers and alcoholic drinks, and described himself in the Forensic Assessment Community Services Report as being “ fairly intoxicated - 7 or 8 on a 10 point scale ” . The Accused believes that alcohol played a huge role in his actions. [ 56 ] The Accused apparently was out with his girlfriend drinking and had won a number of teddy bears for her. He had placed these teddy bears in his jacket, with the heads of the bears sticking out of his collar.

Outside the pub he went to find a taxi, and he claims that he got into a verbal argument with three males who were also outside waiting for a taxi. The Accused claims that “ I had these teddy bears . . . they were calling me a fagot . . . a bitch . . . two guys telling me they were going to beat the shit out of me . . . I remember feeling aggressive . . .

I was upset ” . [ 57 ] In reality I conclude that the Accused and the three other individuals were simply having general conversations about finding a taxi outside of the pub, and that in fact there was no verbal disagreement between the Accused and the three males outside the bar. [ 58 ] The Accused then returns to the bar and purchases another bottle of beer just before closing time. He admits taking the beer bottle outside and hitting the victim Shane Dauphinee ’ s jaw with it, causing it to break. The Accused described the victim ’ s injuries at the scene as “ very bad ” .

Instead of remaining at the scene, the Accused fled the scene after threatening the victim ’ s two friends. The Accused attributes his actions at all material times to being intoxicated. [ 59 ] Without getting into great detail with respect to the serious and potentially life threatening injuries suffered by the Complainant, they can be summarized as a 25 cm laceration to the neck, a 5 cm cut to the jaw, 3 lacerations to the left ear, all of which still today result in arm numbness and stiffness in the neck for the Complainant.

The Complainant had to undergo emergency surgery that evening, and has continued to the present to undergo medical treatment and further physiotherapy as a result of these serious injuries. [ 60 ] The victim and his parents all provided the Court with Victim Impact Statements which list in great detail the suffering both emotionally and physically that the victim and the family went through, and the trauma that the Complainant was subjected to.

The consequences of the Accused ’ s unprovoked irrational assault continue to this day, and regrettably beyond. [ 61 ] To his credit, the Accused has on several occasions including today expressed serious remorse for his actions, and has asked

the victim ’ s parents to forgive him. [ 62 ] The personal circumstances of the offender are relatively unremarkable other than the rather long list of behavioural problems that the Accused acknowledges, and his related criminal record. One exceptional circumstance that was only recently raised as part of the current sentencing is that the Accused reported that he was sexually abused for a number of months beginning at approximately 5 years of age by a relative, and he reports suffering nightmares constantly while he was growing up.

These nightmares however stopped when he was a teenager, although he reports thinking about his history of sexual abuse daily to this day. The Accused reports preoccupation with the possibility of other males being seen as potential threats to him and sex offenders. [ 63 ] The Accused as part of the FACS Assessment was administered a number of personality and clinical tests, which Dr. Back the clinical psychologist judged to be valid.

The Accused it was concluded has moderate depression, and received a score of 3 out of 10 on the clinical items based on possible problems in the areas of negative or anti-social attitudes, symptoms of mental illness and impulsivity. The difficulties related to lack of insight and being unresponsive to treatment were rated as absent, and overall the Accused impressed as having insight into his problems and being receptive to treatment. It was concluded that the Accused ’ s risk to re-offend will decrease if he avoids using alcohol or drugs, which is fairly obvious given this Accused ’ s background.

Case Authorities and Sentencing Considerations [ 64 ] Both Counsel have submitted a number of previously reported decisions for the Court to consider. Several of the precedent cases involve Aboriginal offenders, so the Gladue considerations there do not apply in the present case. A number of defence cases also were considered to be conditional sentence eligible, which is certainly not the case here. [ 65 ] The principles of sentencing have been codified in

Section 718 to 718.2 of the Criminal Code and read as follows: – 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

718.02 When a court imposes a sentence for an offence under subsection 270(1),

section 270.01 or 270.02 or paragraph 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender ’ s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders [ 66 ] The Court then is mandated to denounce unlawful conduct and in this case there must be significant general denunciation given the horrific offence and major injuries inflicted on the innocent victim. The significant violence involved in this matter, and the planning and premeditation by this Accused must be generally denounced, and specifically deterred. The Accused must stop drinking and must stop committing these serious criminal offences.

[ 67 ] As for mitigating factors, there are only two minor ones, namely a not particularly timely guilty plea on the first day of trial, and belated expressions of regret and remorse to the family of the victim. [ 68 ] On a more positive note the Accused has made some progress towards to rehabilitating himself by performing well in a six month Anchorage Program for recovering alcoholics. The Accused is still a young 28 year old, and has learned a trade while being in the penitentiary system. He is also currently in a relationship with a women he met on the internet.

Sentencing Disposition [ 69 ] I conclude that a just and fit sentence in these circumstances for the aggravated assault contrary to

Section 268 of the Criminal Code is five years imprisonment. The Accused will be given a 1 to 1 credit for the six months and 28 days that he spent in pre- trial custody. He will also be given a 1 to 1 credit for the six months he spent in the residential Anchorage Treatment Program.

This means that the Accused ’ s five year period of incarceration will be reduced by one year and 28 days. [ 70 ] As for the remaining counts 4 and 5 that the Accused pled guilty to namely uttering threats to cause death or bodily harm to the victim ’ s two friends present that evening, the Accused is sentenced to a global sentence of one year on both counts to be served concurrently. The remaining charges in the five count indictment are withdrawn by the Crown. [ 71 ] The Accused will also submit to a DNA Order, and is subject to a Section 109(1)(

a) lifetime weapons prohibition. In the circumstances there will be no victim fine surcharge. Heard on the 13 th day of April, 2012. Dated at the City of Edmonton, Alberta this 20 th day of April, 2012. Donald Lee J.C.Q.B.A. Appearances: Prima Davies

Crown Prosecutor ’ s Office for the Crown Marissa Todoff Dawson Stevens Duckett & Shaigec for the Accused